i never used. these tools will help you craft and be a better blogger. it's not just actually creating this message, but it is the link ability to other information that actually make you a good blogger. so you can get content and you can't distribute content through all these methods. so when you are getting ready to blog, think about going out and looking at other peoples blogs, start looking at the wiki. maybe start crafting your blog in the wiki. and then also using twitter or any of these other micro- blogging tools to see what other people are talking about. what is hot, and maybe you have a response to that. and also see what people are talking about in the social networking tools. and i drew up a couple there that probably haven't heard of. made -- many you should know. and then your facebook connections and lincoln, those will also help you kind of

idtify your audience, who you are connected d what kind of information they want to hear and what information you want to put out. and also for me, i used social bookmarks, delicious day, i use them all. i use those to kind of bookmark my ideas for the future come and people have written great things and things i want to quote. and i put a whole bunch of questions appear because i don't have a lot of time today. what is my time right now? seven minutes. okay. so i put out a whole bunch of questions that when you are thinking about blogging or even just working in a collaborative community, that you need know in order to move ahead. so how do i convince my management blog, or if i imagine it, and you have to reporto someone, how do you convince that management to help blog?

and how do you convince the participant to read your blog, or your community to read your blog? you are not going to get 100 comments the first time you put out a blog. so don't feel distracted by that. i encourage you that if you do want to be a blogger, that you actually, you, keep doing it. it, i mean, i know i don't get a lot of comment on my public blog. i don't get lot of readers, but not everyone likes to come in. people are afraid to be embarrasd, and that's fine. or maybe someone has a negative thought or a different thought that what i put out there. you're goi to get those also, but don't let that distract you. one of the things that i've become how do you capture workflow? when you're writing your blog, you can use those tools that i put appear before to capture your thoughts. i dn't put down your mind mapping, but we're kind of mind mapping here on this chart here. we are coming out with ideas,

and so you might want to take a flipchart or piece of paper, or put in the wiki and start putting down key words and sang okay, i'm going to connect his word, you know, to this thought, and maybe from there i get an actual sentence. and then that can start creating your content for you. and how do you pick the right tool for your blog? and this is for the job. well, whenou are blogging, if it's the first under agdncy or organization is going to be blogging, you are the champion. so you find the tool. and if you are comfortable, it's one of the most popular support blogging tools out tre. and they have made it so easy, for people to operate. but there is also other millions of free hosted blog site to start locking. i mean, if you want, you go to wiki and create a page and say this is my blog and then you can add new things and it changes all the time.

and i aeady mened it comes back to result. it can be instant or it can take months or take years. again, do not fret. it willappen. you will have a community built around your blog. and i mention the champion pick who is the champion? well, if you're injured today in this conference, you are your organizations champion. so i want you to know that. if you are feeling when you go back to the office that nobody is there is going to change and nobody understands that government 2.0 is the way forward, well then, it's up to you to make them understand that. so you are the champion. i started out as a community manager with a community, but nobody really thought i could be a manager. and over time, i just kept pushing and pushing until grass-roots level happened, grassroots effort happened and the community realized that

coming up, i was there to help them. d i wasn't there to be a tyrant. they called the tyrant sometimes. what i was there to help them and make the change happen, and one of th result is one of the projects i worked on, was tele- p. and we worked at a grassroots level until that thing became one of the case studies that peop quote today. i'm going to skip work and social media we can use because we've been talking about that. and how do i make my siter my blog or whatever look web 2.0? i don't want you to focus on that. i want you to focus on content. content is the king when it comes to your message. don't worry about flashy dodgers or making your twitter widget inside your blog. you don't need to. that will come over time. in fact, if your content is real good, people will volunteered way help you and to make your site look better.

so i put my twitter idea on there. i mean, if any of you have any question and my blog,nd icy -- where's my camera? ha it up there. are you taking pictures of just me or funny things? i hope you're taking funny things because government 2.0 is not all serious business. we can have a little fun. how much time do we have left? i was going to barrass the people in ydage with the video, but i think i might hold off. >> thank you very much, andrea. >> you're welcome. [applause] >> and i want to thank andrea for getting the participation going here. that is exactly the type of rticipation we would like to have on line after this conference. being part of gov20 means to participate actively and you find the time. and if anyone would like to look at an example of a blog, i

highly recommend that, dance corner. is at times formal but it is a mission driven. i think it is a great example of a leadership blog. don't want to hold you up for lunch. i -- if anyone has a fiv that they would like to talk over with anyone, our sponsors would be happy to listen to. they are set up in the lunchroom behind you. please visit them. thank you very much. the public engagement and the collaboration will start at 1:15 precisely because of the c-span feed. thank u very much. [inaudible conversations] >> like that to a discussion

presidential elections in afghanistan with just 10% of the vote counted, president hamid karzai had a small ld over his nearest rival abdul until. on the result will not be announced until mid-september. the heritage foundation here shouldn't is the host of this event. live coverage here on c-span2. >> good afternoon. thank you for joining us here this afternoon at the heritage foundation as director is my privilege to welcome you to our douglas and sarah auditory. as was toelcome those who joined on the heritage.org website. we do ask a courtesy check for those in house that cell phones have been turned off, and who among our internet viewers that questions can be submitted throughout the program simply addressing e-mails to speaker at heritage.org. our program will be posted later today on our website for your reference as well. hosting our discussion this

morning is jim phillips. mr. phelps is senior research fellow for middle eastern affairs in our douglas and sar allison center for foreign policies studies. mr. philli has written extensively about afghanistan, middle east secupity issues, and international terrorism since coming to heritage in 1979. please join me in welcoming my colleague. >> thanks, john. [applause] >> last week afghanistan held its second presidential election since the overthrow of the taliban in 2001. although the official results will not be known until next month, it appears that there may be a need for a runoff between the top two candidates, which could be, or probably will be resident hamid karzai and abdullah abdullah, his former foreign minister. it's not clear what impact, if any, these elections will have on the course of the fighting in

afghanistan, but what is clear is that after the elections, the war is likely to intensify as the taliban and other insurgent groups step up their attempt to violently intimidate the afghan people. and as the obama administration carries out its new strategy for afghanistan backed by more u.s. troops, more civilian advisers, and more foreign aid. the purpose of our panel today is threefold. first, take a look at the currensecurity situation in afghanistan and suggest how coalition and afghan forces and we take the initiative from the insurgents, particularly in the south and eastern part of the cotry. secondly, to assess the elections and what they mean for afghanistan's future. and thirdly, to look at the developers enabling pakistan which would have an important impact on the war in afghanistan. i would like to introduce our speakers in reverse order today.

the cleanup speaker will introduce first is lisa curtis. she is a senior research fellow for south asia and the asian studies center at the heritage foundation. since joining heritage in 2006, lisa has appeared on major broadcast networks to comment on developments in south asia and has testified several times before congress on issues related to india, pakistan, afghanistan, and the u.s. image abroad. she cochaired the working group and independent bipartisan working gup made up of a handful of us-based experts that published report in september 2008 and titled u.s. and pakistan, the next chapter. before joining heritage, she was a professional staff there at a senate foreign relations committee where she had a south asian portfolio for the committee chairman senator richard lugar. from 2001 to 2003, she served as the senior adviser in the state department of south asia bureau where she advised the assistant

secretary on india, pakistan relations. in the late 1990s, she served with the central intelligence agency as a political analyst on sout asia. she also served as political officer to the u.s. embassies in islamabad and new delhi in the earlier 1990s. where she meritorious honor award from the state department, as well as honors from the cia for her analytical work on indo pakistani relations. most recently, she visited afghanistan in late june as part of a nato opinion leaders delegation. speaking just before her would-be david isby, david has to afghanistan since the soviet invasion of 1979. his fourth book on afghanistan, afghanistan the graveyard of empires, a new history of the borderlands conflicts will be published next year. he has testified on afghanistan before both houses and senate committees, and is a frequent visitor to the region.

most recently, he was in afghanistan last november and was embedded with u.s. regional command east and with coalition isaf forces. he served as a talking head on cnn, pbs, fox news and many other media outlets. and his work on afghanistan was recognized by the soviet government, which awarded him the titles of bush wall balls of fire of history him and the cia agent with whom account will be settled. needless to say, both charges are false. our second speaker is dr. marvin weinbaum. is a scholar in residence of the middle east is to. he was formally afghanistan and pakistan analyst at the bureau of intelligence research at the u.s. department of state. he is also profeor emeritus at the university of illinois where he served as director of the program in south asia and middle eastern studies. before that he was a senior fellow at the united states institute of peace.

he held full research fellships for afghanistan and egypt. and he is the ahor of numerous books, chapters and articles on afghanistan and pakistan. he returned last week from afghanistan where he served as an observer with a democracy -- an election on server with a democracy international delegation. and our leadoff speaker, lieutenant general david barno. general bartel has served as a director of the middle east southeast center for strategic studies it since april 2006. during a 30 year army career, he commanded units at all levels from the tant to lieutenant general. in the ourse of his establish career, he has become externally knowledgeable about the conflict in afghanistan. he commanded over 20000 u.s. and coalition forces in afghanistan, as part of operation enduring freedom for 19 months from 2003

to 2005. he previously served in, as an infantry officer with the army ranger battalions into panama and granada in patients. general barno holds an m.a. degree in national security studies from georgetown university and a b.s. degree from the u.s. military academy at west point. is also a graduate of the u.s. army command and general staff college and the u.s. army war college. as director of the near east south asia center, general barno has traveled widely in the middle east region and has lectured at a viety of civilian and military institutions, including harvard, io, tufts and west point. he is a frequent consultant to government agencies on counterinsurgency, counterterrorism and the changing nature of conflict. and with that, let me just turn to general barno to lead off. >> thanks to jim. and much more important to my wife, my youngest son just got back from a year in afghanistan with the 101st airborne

division serving in regional command east and jalalabad and six months in and around conda are. that was a much more demanding experience for our families and having me over there for 19 months. and it is certainly makes me feel the challenges that are ahead very personally as that will be on our horizon sometime down the road in the future as well. as jim noted, we've had some conversations about before we even arrived on tha panel this afternoon. we're in a state of some degree of uncertainty in afghanistan right now. brought to a very clear point by the election that took place on the 20th, and the reality that of course, we don't have a final resolution of who the next president of ahanistan i going to be. so that's the context in the sense of our panel today. and in some ways, it's a broader metaphor for the uncertainty of afghanistan and the entire project over there which i think

is certainly something that concerns all of us that got a deep commitment for our overall international policy success in the region. so today i'm going to talk a bit about challenges and the opportunities inherent in those challenges as we look at the road ahead over the next several years, and talk a bit as well about the current context of where we are today. eaier this year i had the opportunity to testify before both the senate and house armed services committee, and each of those testimonies, i noted that in many ways success in afghanistan is a bit of a mathematical equation. it's not simple, but it is straightforward to end the mathematical equation michael at this. success, which is achieving our policy objectives in afghanistan, and those are open for some discussion, but success equals leadership plus strategy, plus resources. leadership plus strategy plus

resources. and i made a number of observations on what modifications, changes, new directions we might go in with regard to our leaderqhip, our strategy and our resources in afghanistan. leadership in both individuals, people, and organizational structures, our strategy being overall policy approach as well as a campaign plan that hps realize the policy object is returned and finally, resources which range from not only the billions of dollars required, but also the key individuals concerned, the thousands of military soldiers, sailors, airmen and marines that fighter, and the key civilians and the diplomatic and development communities that are required to see this through to success. and i think one of the striking things i would observe up front today is that in the last 90 days or so, really since the beginning of the administration, to be more broad in my outlook, we have seen major changes in both leadership, strategy and

resoces. all three of those components have seen a significant chang in direction, if you will, from what we had six months, 12 months, 18 months ago in afghanistan. i think that europe will be. with early early this year were on the cusp of significant challenges, perhaps even failure in afghanistan. i think we are moving a different direction today. and that is only because of the dramatic changes that have been put in place in leadership in sttegy and resources that are only now beginning to play out in afghanistan itself. i spent three and a half days in afghanistan in january of this year as part of general betray us is strategic assessment. i will go back probably in november for another week to two weeks to provide some further insights. and it is clear as we look at the dimensions of the challenge there, that we are in a critical period of time. many arguing the next 12 to 18 months in afghanistan will decide the out of the conflict.

i think there's a fair up or the. is a bit of a short range look what it is is also a fair appraisal of things have got to change in several dimensions in the next 18 months or so when we talk about perhaps for challenges that we face as he looked to the road ahead over these next day, two years in afghanistan. and four from my perspective look like this. number one, we collectively, the international community, has got to defeat the taliban strategy in afghanistan. and we don't often talk about that. i want to find how i see that strategy. number two, i think we need to collectively, particularly general mcchrystal, general eikenberry, the other key international players there, we have to deliver unity of effort on the ground in ahanistan. we have talked about that for years. now we have to deliver on that promise. third we have to thank collectively, and this really rests in afghan hands, restore the trust between the afghan

government and their people. that has been fractured over th last three and half years or so. during my era there, from 2003 to 2005, there was a great deal of respect, trust, cofidis, optimism between the people in afghanistan and three merging government. that his doctor today and that has to change. and then finally, to talk to one of our key vulnerabilities, i think we, in the united states, have got to look to rebuild popular support for this extraordinarily important and dangerous conflict. we simply cannot allow the population of the united states not to understand the reasons for our effort in afghanistan and not to be fully informed and be fully behind this extraordinarily important enterprise that we have there. so let me talk briefly about each of those. first, the taliban strategy. and again, defeating the taliban is more certainly than killing, capturing, undermining their structure. we have to understd what their strategy is. the way i characterized this in

very simple terms is that the talin strategys run out the clock. run out the clock. if this were a football game, they view themselves as being in the fourth quarter. they are ahead on the scoreboard. they are controlling the ball pit and their strategy is to run out the clock on the opposition. being thus. that also plays to one of our greatest vulnerabilities, is our ability to stay committed for a long term conflict. and i will talk to that at the end and this issue of rebuilding american popular support. the taliban strategy is deeply roote@ in our history. certainly the recent history in the last 30 years. many afghans would approach me and asked the question when i was commander, you americans are not going to abandon us again, are you? because their experience, their history that they believe people in is at the end of the soviet conflict, which afghans believe they won on behalf of the west, and defeated the soviet empire on behalf of the west, at the

end of that conflict they believe america walked away from afghanistan. and there is quite a bit of evidence to support their view of what occurred in the late 1980s, early '90s. they are very weary of that occurring again. our pakistani friends across the border have the same outlook. so we are working against a strategy that our adversary has now that simply says the americans are going to leave, international community is going to lead, and we the taliban are going to be here when the west leaves, when the americans leave. and you're going to have to deal with us. that is a tremendously powerful outlook and a tremendously compelling argument for the taliban to make. we have to think through clearly how we can defeat that strategy. agonies of central winning and investing and enduring as my friend ashley likes to talk about with our overall effort in afghanistan. the second challenge, unity of effort. this one is a bit more prosaic but it is no less import which

is how do we get all of these organizations to work together, not simply in kabul which will be important, but out in the district and the villages and the provinces which will be vital. we have got to structure and neral crystal, general eikenberry in particular will be at the forefront of this structure a working interagency development diplomacy, defense approach down at the grassroots level. that actually works well together as a team. and there are steps being put in place to do this do. moreover, as a general mcchrystal notes in his new counterinsurgency guidance that he just published this week, that the afghan national security forces have got to be partnered in this effort. they have to eventually leave this effort. there has to be a unified command structure with the afghan army and afghan security forces. down at the grassroots level. there is little to none of that today. that has not been a hallmark of our approach today in afghanistan. so this unity of effort, delivering the goods at the grassroots level, that builds

partnership between international security forces, the u.s. military, nato military afghan army and police, and the development and diplomacy, that has to work seamlessly down at the very basic level in afghanistan. on organizational structures starting in washington post looks at what they are not designed to work that we. we have got to get that to work in theield. and without that, we're not going to succeed. third is restore the trust between the afghan people and their government. as i noted, that's really an afghan required in. that's not something that the united states can do. it's not something the international community can do. only the next president of afghanistan, only the government of afghanistan is going to be able to create that result. that trust has been frayed to the point of fracture in the last three and a half or four years in afghanistan. and there's a tremendous gap between the peoples expectations, which i saw so high it's optimistic in 2004 at

2005, and would afghan people are today. so the next president of afghanistan, whomever that is, president karzai or others, has got to take on as a priority effort rebuilding this trust of the afghan people have no confidence in the govnment. they have no confidence in the rule of law. they have no confidence in the ability of their local government. not simply the government, but the local government to take care of their need to meet their expectations. and they are very modest. and that cannot occur, then no amount of military effort will enable us to be successful in afghanistan. we have to obsess that objective as one of our priority task and then finally i think, closer, we've got to rebuild popular support and popular understanding for the war in afghanista here in the united states. and i would argue in europe as well. these wars are long. they are difficult if they are tough slogs. the course has been very uneven and the path has been a zigzag one over the last several years.

we have now got torystallize in the minds of the american people and our allies that we have a clear road ahead. we have the right commanders and the right leaders on the ground that we have the right campaign plan being rolled out to be able to execute our strategy and that we are going to resource that properly to achieve the very important result that we committed years of our blood and our treasure to. that is very achievable. in my recent visit to afghanistan, andertainly during my over year and a half there as the commander, the difficulties we faced in afghanistan in some ways are not as difficult militarily serving as what we face in iraq, and were not at a position of an someways and desperation that we were in iraq by the end of 2006. and i watched that very closely, knew all of the principal players involved on that on the military side. afghanistan is not that did it today. is not that desperate today. we are in a better position militarily today, believe it or not, that we were in what some

in fact many considered a hopeless situation in iraq just three and a half years ago. this is achievable. it is winnable, and it is worthy of the result. but we have to play to the american people, and we have to explain to our allies, to the people that make up their governments across europe that this effort is achievable and it meets critical and national security objectives for all the countries involved in the 9/11 attacks occurred many years ago and appeared to have receded from popular memory. in some ws, i think many people have come around to the belief that that is not going to happen again. that is a risk that we have got to be extraordinarily vigilant to prevent from having the realization poker again in the united states. that it can occur again. or have it occur again in your. so the fight against the taliban in afghanistan and related to that but it is broader than that. and that regio becoming an

unstable part of the world, given the nature of the threat that is there now from terrorists, the nature of potential instability of the governments of there. that is an extraordinary series of national security threat to the united states and to our friends around the world. and i'm not sure we actually characterize it that as clearly and as copperheads only as we need to to make that case to the american people today. . .

>> we've got the right pieces in place to deliver on that road ahead. we have to be clear on our objectives on our strategies to defeat the enemy. the narrative to the american people, the resolution of the american people and our allies plays right to the taliban's strategy. the idea plays into the strategy of the taliban in the fourth quarter. and i think we have to be very, very aware of that and be thoughtful about that. effort in this new enterprise with the new leadership is critical. there's reporting today already that it's going to be difficult to surge the civilians required for this. we can't accept those kind of outcomes. we have got to deliver on this now and provide the resources at the grassroots level. restoring the trust in the

afghan government as this election plays out to its final chapter, we've got to work intensively with the next government of after began stand to -- afghanistan to help them build the trust and confidence with their population. if they fail, all our efforts to date will be in vain. and finally, recasting the narrative and reviewing for the american people and for the populations of our allies why we're in afghanistan and what the potential downsides of failure in afghanistan could look like. i'm not se we've painted that picture clearly enough, and i think that wl help crystallize the outlook of all the populations involved in this difficult fight. so to sum up, i think the next 18 months is a critical period of time in afghanistan. secretary of defense robert gates and admiral mullen have both been very clear in public terms about the fairly short timeline that the commanders in afghanistan have and the dip plomatic leadership in

afghanistan has. intensively focus their effort on the requirement to begin to turn the enterprise around and put it on a positive footing in the next year and a half. we've got to provide the popular support, the resource requirements and the clear understanding of what our objectives and what the deliverable are in the next 18 months to buttress the ver tough path that we've set our leadership in afghanistan on to help lead to success. thank you. >> well, thank you, general. marvin? >> well, i'm going to devote m remarks almost exclusively to the election that took place on august t 20th. and look in particular at what we might have expected from a presidential election in afghanistan. what actually happened in that election as i saw it and others. and what are the consequences for political stability and reform in afghanistan for the

counterinsurgency strategies that general barno spoke about this morning, this afternoon. you know, elections can be a, can legitimate democratic rule, but they can also precipitate political instability strong states can overcome the disruptive effects of bitterly-fought campaigns and flaws in the electoral process. for weak states elections can be a shock to the system. it sets back democrati developmen i fear that the latter is the case in afghanistan. it wasn't very difficult to predict what this election was going to bring. did we have any reason to expect that it wouldn't be flawed? it was hard to imagine that afghanistan was going to be in a

better place after the election than it had been before the election and the place before the election was not a very comfortable one as it was. there are many who questioned whether there ought to be an election. they said given the security enviroent throughout certainly the south and the southwest of the country, but elsewhere as well, was it possible to hold a free and fair election? it was also questioned whether there was adequate preparation for the election. whether the voter education that so many felt was necessary to have an honest election was possible. and then, of coerse, with no political parties complicating particularlyn that political parties can play a valuable role in monitoring the process.

the last presidential election thatook place in afghanistan in 2004 did, in fact, bestow legitimacy on president hamid karzai, but no one expected the same in this election. it was very clear that in the five years that have passed that he was unlikely to duplicate the 55 percent that he had secured in the 2004 election. his popularity from every indication had badly eroded, and logic dictated that he probably could not then void a runoff election. everyone anticipated, as i was suggesting, that there would be irregularities, but it was almost certain as a result of that that the opposition candidates would be likely to declare the outcome as unacceptable, as fraudulent. they were unlikely to defer as they had in 2004 when they had

jections to the international community that had ask them to accept defeat gracefully. but various preelection appointments and various deals assured that karzai was going to be very competitive in this election. he had chosen as his cast of co-- i don't want to say co-conspirators, but certainly his running mates and his supporters he had surrounded himself, as we know, with a number of very unsavory characters. but what they did bring him w a, was a ability to cut into the opposition's constituency. they also guaranteed him to some extension that the very forces, very individuals who may lead forces after the election to challenge the results would be,

in effect, neuterrized. so we went into this election expecting that, indeed, this would be a close election. and that despite his loss of popularity which had his in the polls about 30 percent, that was nondication here necessarily of the support that he would get inhe election, particularly since it would come down to a choice between karzai and others. now, what did happen in the election? well, there was good news. it was immediately advertised as such. in effect, it was the dog that didn't bite. the threat of major disruption of the election by the taliban seemed not to have materialized. kabul did not suffer the kind of violence that many of us, particularly those of us who were in kabul at the time, had feared.

in fact, there seemed to have been two elections, one in kabul where from the best of our ability to judge the election went rather smoothly. it was by the book. there was, there seemed in the many polling stations that i visited there seemed to be professionalism, they seemed to be dedicated to what they were doing. it was rather impressive. however, as reports came filtering in it was evident that the picture was different elsewhere in the country. that there may very well have been two elections that day. bu it wasn't even that clear because in kabul there had been two bomb attacks which i was and my colleagues were totally up aware of. -- unaware of. and, in fact, across the country there were hundreds of acts of violence associated with the election. none of this was known at the

time because there was a very conscious effort in which the media agreed to participate to keep any announcements, any news of these violence, of this violence to keep it suppressed during the course of the day. and, of course, the objective here was supposedly not to discourage people from coming out and voting. well, we as observers saw then really was not a accurate picture of what was going on nationally. what we saw, i think, was a true picture of what was happening in much of kabul and perhaps to some extent in harrat and the other two larger cities outside of the second largest city, kandahar, where we knew there were going to be problems. why is that? because by the ver nature of

observation you're going to go to those places where you feel secure. you're not going to be visiting those very polling centers which are considered to be dangerous not only for the voters, but for the observers. and so we, we were not able to, obviously, place people. we did put people, we did see people from our team in prts in helmand, in kandahar. but unfortunately, they were unable for the most part to get anywhere near the election centers. they could provide a peripheral security, but it was considered too dangerous and possibly even viewed as intervention their if they had been any closer. so we didn't get to see that. there is a direct relationship, is what i'm suggesting, between

the security of the area in which the polling is taking placend the possibility for fraud. i might also add that even in the viewing of the balloting we have to appreciate the fact that the most egregious kinds of violations don't occur while the balloting itself is taking place. yes, you may see the kind of what is often referred tos, as retail fraud where perhaps someone has voted twice, did not get ink on their fingers as ey should have had in order to keep them from multiple voting and so on, but these are not the kinds of violations which determine the outcome. the kind that determine are the stuffing of ballot boxes. they are the, they are the

manipulation of the result totals. they are the host sale as against retail, the wholesale depositing of party identifitions which are then, which are then counted. they don't involve what partularly i saw after the election was over, the destruction of ballots. and i saw these. which had been thrown out on the road. all of them checked off for one of the opposition candidates. a great deal of problem here in making judgments about, about it. we do know that the turnout was low. whether it was out of intimidation or apathy, we knew that it was going to be low. perhaps now we're looking at something a lite bit more than 30 percent. there were 17 million registered

voters, many of these, unfortunately, were probably multiple registrations. probably fewer than six million people voted, but there are no census figures. and in the balloting place there was no registration list. people could vote at any station that they chose to. so it was virtually impossible to make any definitive judgments here about the participation except looking at the gross figures. based on anecdotal evidence, it seems that many who were critical of karzai -- and i suggested that overwhelmingly it seemed that the public had lost some degree of faith in him -- it seems that they either didn't vote in the community which he belongs, they either did not vote, or they actually chose to vote for him in preference to

dr. abdullah and the others. dr. abdullah being tajic, or at least half tajic. karzai did, because of his alliances, get some cross-board support, but nevertheless, ethnicity was a factor. there's hard evidence now of large-scale ballot box stuffing, destruction of ballots, falsification of tallies, and i think there is going to be much more evidence presented in the next few weeks. there have been more than a thousand complaints tt have been filed by the opposition candidates and by the karzai people themselves, but what is likely to, i think, trip up the perpetrators of fraud is their own greediness. it's very likely that we're going to best know what occurred on a large scale when we start see what we believe were the participation figures, say, in

kandahar somewhere between 5-15 percent. if we begin, if the results come in which we have not yet for kandahar to my knowledge and we see 30, 40, 50 percent participation, this, i think, will be a prime fascia case for rather massive fraud, fraudulent voting. we have here, fortunately, a electoral complaints commission which has a majority of international members, ande have every reason to believe that they're going to give these results careful scrutiny. they have the power here to throw out the results from any polling center, from any district, from any province. in fact, i guess you could say they even have the power to throw out a candidate. what they do could very well challenge the complexion of the election.

whereby these preliminary results when they're in and they begin their business which is supposed to do over a two-week period which is hardly enough time to examine more than a thousand complaints, but never theless, they could alter the course of the election whatever that margin of victory could be for any candidate. and they could bring about, therefore, at least a runoff. now, finally, what are the consequences here? let there be no doubt that our entire strategy for dealing with the insurgency in afghanistan may be at stake here. a bad election threatens to undermine everything we're trying now to get right and that general barno outlined for us to lead us to believe that we are on the right track. without central authority that is perceived popularly as

legitimate, it's difficult to see how we can do what general barno suggests we have to do, and that is to restore the trust and the confidence that now has eluded us and the central government. because we also lost that trust and confidence. and we have it to regain. can we expect to partner with a government delegitimized by the very process by which it is hung to power? that may be the issue. in the endhere is a certain amount of subjectivity to this. how much fraud enables you to declare the election unacceptable? how much is too much? the international community is, i believe, in a very difficult place because having sked this election -- sanctioned this election, having in effect

demanded that it take place, having justified the addition of additional troops because of the security needed for the elections can it accept anything other than a minimally acceptable outcome? can it afford to challenge the credibility of a future government? this is a very serious issue. initial statements from the independent electoral commission -- which is government appointed -- have been meant to be calming, but also in the news conferences that i attended of theirs had the tone o being dismissive about the, excuse me, the reports that were emerging. excuse me. tended to be dismissive about the reports that were emerging. our own administration congratulated the people of

afghanistan but also left the impression that we were satisfied with the process. reports from the e.u. observers and the national democratic institution, institute, put a favorable gloss on the election even while admitting that the results were not i and the adjudication process had not run its course. aside from the possible embarrassment we have when we make preture judgments like this, we also leave ourselves open to the charge that we, in fact, favored the status quo. that we had a favorite. finally, can we salvage this election? can we end up here with a credible kabul government? there have been efforts by the united states and others leading up to this election and going on even now, i suspect, to create a national unity government to

somehow bring together the leading candidates in a, in a single government. it's highly doubtful that the oppositi figures, particularly dr. abdullah will agree to such an agreement or dost who will probably come in as the third highest candidate in the county. but more importantly, the afghan people, i do not believe, will accept a deal that makes their voting irrelevant, and it adds to the bitter cynicism that many have toward their own leaders and toward the west. the u.s. and others have feared a second round, that it will intensify ethnic tensions. but there are already ethnic tensions. i would argue here that a second ballot affords the opportunity to convince the people that the

election outme was not preordained, that it was, can be a competitive election. it may happen anyway if karzai fails to gain a majority or if the complaint commission finds enough amiss particularly in the south to deny karzai the 50 plus 1 percent that he needs to avoid this. but a second round offers, i think importantly, the possibility particularly with greater international involvement than occurred in this first round to better monitor the process, to put in mace procedures which may obviate some of the difficulties in this first round. and in the end produce somene who is more convincingly a winner.

ether it be hamid karzai or abdullah abdullah. thank you. >> okay, thank you, marvin. david isbee? >> thank you. the most important u.s. policy decision in afghanistan is not implementing current policies, but rather deciding which come after them. the hard realities of both the conflict in afghanistan and the politics in the united states underline two sets of facts. first, the situation in afghanistan is that serious, and the need for improvement in so many areas bot geographical and functional is so profound that even if all the elements of the current policy are successful, afghanistan cannot be solved in three years. successful implementation of current policies can at best make a down payment oning on su.

at worst, if we fail to implement current policies effectively, we can thrust afghanistan back into civil war, beset by its neighbors' competing ambitions. second, over the next three years u.s. politics will have an increasing potential to affect afghanistan. the current administration is going to want to have afghanistan in the rearview mirror as the current saying goes by the time it must run for reelection in three years. neither the republican opposition nor the left-wing base of the democrat party is likely to be happy withhe course of the conflict in afghanistan at that time. public support for u.s. policies is already declining in the continued absence of a concerted effort to explain them to the electorate. identifying what needs to come after current policies, what can move beyond it, is important for anyone motivated by toll politics or any other reason who

actually cares about success in afghanistan. it will be easy for critics of the current administration to say simply, quote, bring the troops home which would enable the left to simply recycle their favorite bumper stickers or for the congress to impose conditions on the u.s. commitment or requirements on the afghan government that may be politically attractive, but self-defeating. an effective follow-on to current actions, let's call it plan b, needs to show commitment to afghanistan. the culture of construction that has grown in afghanistan in recent years is in many ways a symptom of the perceived fundamental weakness of commitment by the united states. that the day will come as it did in the first geoe bush's administration that the u.s. would disengage from afghanistan and leaf it to be fought -- leave it to be fought over by its neighbors. to many afghan elites, this has meant they will enrich

themselves while they can. plan b needs to forge a lasting relationship with the afghans and afghanistan. we need a relationship with afghanistan like that with israel, one that will endure and one which will not preclude support for neighbors. the afghans made the down at the same payment on this relationship back into the 1980s. that afghans fought and died is one of the reasons why all humanity can enjoy a world without soviet communism. plan b needs to go beyond current needed efforts to build reliable security forces. we need to build comparable capabilities in afghan life. an afghan government, not outsiders from kabul imposed by foreign troops, must be honest, effective, and above all perceived as legitimate. it means helping to restore afghan islam, for religion has a power and reach in afghanistan thats hard for outsiders to

derstand. in the final analysis, peace in afghanistan will require a functioning private sector economy. plan b must take into account the importance of pakistan. of all the many areas where u.s. policy has fallen short in the year since 2001, none has been more important to afghanistan than the failure to get pakistan to prevent its territory being used as a sanctuary for the insurgency inside afghanistan. pakistan is a friend. the u.s. military presence in afghanistan would not be possible without the lines of communication running through pakistan from the port of crack chi, but years -- karachi, but years of cooperation has made possible the insurgency. any sign that the u.s. is looking to disengage fm afghanistan will lead pakistan to continue to act from preventing afghanistan from

becoming the site of a threat to its own security. disengagement will not bring cross-proxy war. plan b must be guided by effective principles. include as many different afghans as possible. insure whatever is built, created or done afghans must take ownership and responsibility. no foreigner should do anything in afghanistan if there are competent afghans available. where there are not, the first priority should be training. putting together an effective follow-on to current policies that can be put before the american electorate is likely to be a challenge. plan b needs to show the electorate that there is a way forward that can build on current policies and that is worth the cost in dollars and casualties. otherwise, the real losers will be the people of afghanistan, not the current administration, nor the congress. now is the time to start working on plan b for afghanistan.

>> thank you, david. and our final speaker will be lisa curtis. >> thank you all for being here, and thanks, jim. i'm going to talk about the elections, i'm going to say a few words about pakistan's role in the regn, and then i'm going to talk about what success in afghanistan should look like. i'll try to not be repetitive, so forgive me if i am. of course, u.s. stakes in the election in afghanistan are very high. to help achieve stability in afghanistan and insure that the country does not again become a safe haven for international terrorists, the u.s. has to have a partner in kabul that has credibility with the afghan people. this was a historic election. in the runup to the polls we saw large campaign rallies held by the various candidates, we saw the first-ever national debates among the candidates on television. these are kinds of political activities that we definitely would not see under taliban

rule. i also think it's significant that the elections went forward at all and that the people did participate, albeit in much lower numbers than we would have hoped. but they did this inhe face of brutal taliban threats and attacks, and i think this says something about the afghans' determination to pursue a democratic future rather than harsh islamist rule like that we saw under the taliban in the late 1990s. the taliban's threat to cut off the fingers of those who voted, i think, shows their desperation, and it shows that they have nothing to offer the people except violence and intimidation. but this type of blatant intimidation is a risky strategy, and i think it could definitely backfire on the taliban. now, of course, there are two outstanding questions that will have to be resolved before we can say that this election was a success, and marv has spelled

out a lot of those issues, but let me just brief ri touch on -- briefly touch on them again. first, the question remains was turnout high enough to lend legit maasty to the vote, and, second, will the accusations of fraud be thoroughly investigat, or will they also delegitimize the vote? it will be up to the afghans to decide whether participation was high enough to reflect their will. on the question of irregularities, i agree with marv that the international community can help out, and this is where the work of the electoral complaints commission becomes very crucial. ..

out. >> if karzai were to be declared the winner in the first round, that is if he obtains the votes, the think his government would be on very shaky grounds. the coalition forces would likely be perceived as supporting the sham election and it would be more difficult to achieve theoal of security in

afghanistan. if neither karzai more dulla receive 50% of the vote, this may prolong the security thus more taliban violence and intimidation, it could also bolster their bait by demonstrating it was truly a competitive campaign. so obviously there is no optimal outcome. there will be uncertainty for the time being. obviously what happens in pakistan and the region doesn't impact pakistan. i would say we are beginning to see things move in a more positive direction in pakistan and pakistan taliban. there's more clarity about the threat to the country posed by

the pakistan taliban than there was just six months ago. and the military has proved it is capable of pushing bacthe militants from the settled areas in the nthea parts of the country. if it is determined to do so. three months pakistan has been able to oust the protaliban forces from the valley which has allowed many of the internally displaced people to begin returning to the region. the military, however, will have to remain in s.w.a.t.. the leader has also helped the pakistan in fight against terrorism. it demonstrates that u.s./ pakistani cooperation. however, i would just caution that the positive developments of pakistan m not have an

immediate or physical impact on the situation in afghanistan. they are certainly helpful in the overall battle against extremism in the this part of the world. and they will help stabilize pakistan. but to quell the insurgency in southern afghanistan particularly, something will have to be done about the leadership that currently resides in and around pakistan's providence. what i heard from nato commanders when i was there in late june that the afghanistan taliban leadership continues to direct, fund, and coordinate the insurgency in southern afghanistan. and neutralizing this leadership would go a long way in achieving our goals in afghanistan. thus convinceing pakistan to cooperate with us fully is necessary to achieving our goals and remains a fundamental challenge for the obama administration. there's been a lot of talk about

about a recent adc poll that showed 51% of the american dose not believe the war is worth fighting. i believe that as general barno emphasissed, u.s. leaders need to explain better why it is so fundamental to national security interest. i think president obama did this on march 27 when he first laid out the new strategy for afghanistan and pakistan, and he did so again in the last week when he spoke to the veterans of the foreign wars. he said this is not only a war we are fighting, it is in the fundamental defse of the american people. i think his advisors need to repeat this message over and over. and i want to say just something quickly. on the statements when you puts timelines, we have to achieve these objectives in one to two

years p this generally have a negative impact on the region with both afghan and pakistan stannys and allow them to convince that they are on the winning side. by the same token, these statements make it more develop to convince the pakistanis that the u.s. will remain committed over the long term. put simply, these statements with timelines undermine our own objectives. let me conclude by spelling out what i think success would look like from a u.s. perspective in afghanistan. success in afghanistan would mean a stable government accepted by the majority of the afghanistan population, but not along ethnic lines. success would also mean that those taliban who support international terrorists are not in a position to threaten stability of the government.

this of course would require a strong well equipped a well trained afghanistan army. success in afghanistan does not require the complete elimination of anyone who is ever associated with the taliban. but it does require that the taliban that are allies and other international terrorists do not have the ability to assert their influence through intimidation of theopulion. reconciliation at local level with those who are not committed to the cause of al qaeda is certainly possible. there are no signs, however, th the senior leadership of the taliban, mainly located in pakistan, is interested in participating in a normal political process or breaking their ties with al qaeda. they believe they can chase them out of the country, take power, and institute their harsh rule that accommodates al qaeda and its agenda. simplyn outcome that the u.s.

cannot afford. thank you. >> thank you, lisa. and at this point, i'd like to go to the question andnswer part of the program. and i like to ask the first question to give our assistants time to mobilize to bring microphones totted eyewitness. if you should ask very short questions so we have time to get as many as possible. as far as my questions, i like to ask each of the panelists to react to what the obama administration has done thus far. recently the administration's point man on afghanistan and richard ignored a mini fire storm when he dodged the question on what victory in afghanistan would look like. he said wasn't sure, but he would know it when he would see it.

this is why there is internal discriminates about matching means to ends or perhaps different approaches to the resourcing of the war. and i'd like to ask each of you in your opinion what is obama administration done right so far? and secondedly, where might some course corrections be in order to improve the u.s. policy on afghanistan? >> i think i'll start by my earlier comments that i think the changes in leadership and strategy and resources not all which inflate out has been spotted off. those have been very difficult moves. certainly in the leadership department, very tough decisions had to be made. i think those contributed to setting conditions for success and far me comprehensive way that we've seen in years and years and years.

now had the resource played out, in the way of additional resources, people and money, has yet to be seen. but i think that deserves great credit. >> i agree with trying to avoid defining what victory is. i don't think we aught to use theictory. i prefer as general barno has, we talk about having some success. there's not going to be a clean-cut military victory certainly nor is there likely to be a political victory. it's going to be as lisa curtis suggested, it's going to be essentially that the place becomes stable enough that it both is able to withstand the challenges of its own integrity as well as the concerns that we have in terms of global issues. let me just add one thing.

one area where i think the administration may be back on the right track. i think it initially was off the track. it defined back in the first speech that president gave, it defined essentially our mission there to protect the homeland. and focus heavily on al qaeda. i believe this is wrong because it did not suggest the wide interest that we have in the region. our stakes in the region go well beyond simply the controlling of al qaeda, the elimination of al qaeda. that's certainly pong them. -- among them. but we have hear concerns about the pakistan maybe an issue as well as afghanistan. the issue of nuclear proliferation, the dangers of war between india and pakistan.

the kind of taliban victory into central asia and into the gulf. the implications regionally and globally: should we have to walk away from afghanistan, i think are catastrophic. and the american public has to be told that. and because that's going to be necessary for us to be able to sustain our effort there for the amount of time it's going to take. we aught to have realistic expectations about what we can accomplish. but let's not fool ourselves into believing that if bin laden were killed tomorrow that we had an easy et from afghanistan. >> david? >> yes. usually if the answer is foreign troops to afghanistan, you probably asked the wrong question. that being said, there is for the current administration really no option except increasing the commitment.

their trend lines are not going the right way. and the surge needs to turn things arounded. but again those in afghanistan, we're seeing some progress in afghanistan security forces. but it is not just war but afghanistan life. we're going to need simple efforts in things like economy, judiciary, even religion. because much of afghanistan preaches propaganda for the enemy. unless we start turning other parts as well as the security forces, we're in the going to get beyond the current tuation. >> just real quickly in temples of what the -- terms of what the obama administration has done right, linking the issues and viewing the region as a hole is not to say that afghanistan and pakistan are similar in terms of their economic development, even

their democratic development or institutions, but what it threats spans the border. and that is why it is so important to have these policies together. i think the focus on protecting the population and drawing back on air strikes as well as artillery strikes is extremely important. i think we were a risk of losing support from the afghanistan people because of the growing civilian casualties. i that was is it step isn't the right direction. i think the decision to send more trips to theouth to srt disrupting the taliban's strongholds there was also the right decision. in terms of what needs to happen moving forward, there has to be a clear-cut strateg president obama will have to be clear if he wants to send more

troops. i think congress will demand that. and i think we have to give strategy time to work. again, with the one to two year statements you pick up. there's a sense of impatnts. and i think we need to get other that impatience. >> yeah, i think the taliban has before quoted many times as saying you have all the clocks but we have all the time. i think it's necessary to change that perception. if we're going to come to the point where they are going to lay down their arms or at least join some kind of broader government which i don't see in the cards for the top leaders. but there are so many different factions within the taliban that can be bought up and driven away from the top leadership. let's open for the audience for questions.

let's start right here. >> jeff from the institution of study board. this is a distinguished panel. my question is for general barno. you talked about the strategy, do you get what their campaign plan is in the south, coherent, proactive, reactive, if you can talk about that, that'd be great. thank you. >> i don't have any particular intellects -- intelligence on that. my own opinion is their strategy level is what i described. the operational level there, the campaign plan, well, i think that's focused on isolating and maintaining as much control on the south as possible. that's their historic homeland,

that's where they began as a movement. that's has a particular couldn't importance to them. from a campaign stand point, the population has great residents. at the tactic level, the garble day-to-day level, particularly in the south, it plays out. their tactical role is to create results on the ground. that generally means inflicting casualties on nato forces on the united states and allies and driving down that popular support at home. they are pretty good at that. in associating with that, they are also looking to pause the international military forces to overreact to their activities and thereby create civilian casualties to undermine our support. so i think at the tactical levels, those are things that they do an a regular basis to feed their strategic tactics. >> yes, sir.

right here. >> al from a media. how to you evaluate the role math toe allies have played in the -- nato allies have played and what about other international communities? has russia played a conductive role? >> i'm not sure who. >> i think that was an international effortere to support this election. as i mentioned before there were internationalbservers. the international forces on the ground were participating in providing aitional security for the election. i did not nor have i heard the russians have played any particular role here. although, iran, russia, pakistan, all have the capabilities of being spoilers if they choice it.

there's been no evidence that they have chose that role. >> okay. questions? sir, right here. >> freelance core response. both the taliban have moved their head quarter to pakistan. these have just mentioned and can fight semi triwar and why the war like the car bombing and this. i think pakistan is in big trouble. how are we going to deal with this? and both barno and also in terms is for the economy. so we really need to use the resources going there. and where to get the same

resources. and then we'll talk about this compression of the e sac. and this is really making the faction and also what they can produce, it won't be any good. so how do you deal all this three very critical issues? thank you. >> i guess one would be where do you get the civilians for the surge? >> all right. i think that's a valid question. it's easier to deploy troops than find civilians who can go. i think there a efforts on and i think what will see is the civilians going first to the major ministries. and one point i wanted to raise here when i was in afghanistan i met with some of the u.n. people. i think the united nations

assistant to afghanistan is starting to play an important coordination role between the afghan government anteinternational donors. what we saw a year or two ago was a lot of confusion in terms of different donors doing their own thing and not speaking with one voice. i think that's beginning to change is the u.n. is taking that role of coordination. in fact, the proposal for the civilian surge was -- there was a lot of input coming from the afghans themselves, which of course is critical. they have been to be leading and be completely involved as partners in these development eforts. what i heard when i was there is this is happening. and they are playing a role in

developing strategy for how these civilians technical assistance will be involved in helping to develop the country. so i think this is actually a positive development. of course we have uncertainly who will be the next government. but hopefully we will see those efforts that the foundation that was laid for these efforts continues with whoever makes up the next government. >> okay. this man here and then this man here. right here. >> thank you. i just returned from afghanistan. i was in the afghanistan. general barno talked about ust. and the lack of trust that the afghans have for the afghan government, and the message that u.s. government has t lay to its population. the americans don't know what they are doing. unlike the 2002,2003, 2004

period. having an election as marvin said, if we use the outcome while spending 250 plus another 50 million spend by the candidates, why didn't we go? if the outcome is n the right outcome, then a runoff would n be the solution, would it? >> i think what we're trying to argue here is that if the first round is widely viewed as discredited for whatever reasons , that there's another opportunity here to demonstrate that the democratic process can work. even if it's not working at the kind of level that we would scrutinize elections in other countries. althoughere in the united

states we have some concerns as well about how our elections are run. now i -- nobody is suggesting here that a second round as a panacea. but it does give us i believe an opportunity here with just two candidates in the race to create at least the sense here that one of these candidates honestly did win. it's going to be expensive to have another election, it's going to be distracting to have another election. but i don't believe, and i know a number of other people feel the same way, that lvein the election in with the uncertainty that the current round of election has produced is going to be create the kind of legitimate si that this government needs. and let me add it goes back to the gentleman who asked before,

legitimacy is more than just the outcome of an election. legitimacy is something that the build by the government and the kind of justice and governance that it brings to the public. and this is more than just the elections. but the elections are a way of highlighting the issues here about who should govern and remains to be seen how they are going to govern. >> if we legitimize this -- >> it would be the outcome to legitimize it by their participation and the community is not going to vote. but i think what is very obviously heres is in so many other areas of afghanistan today

that afghanistan is not capable of doing things on its own that we hope in the future it ll be able to do. but at the moment now, it's not able. >> it's important to note this is afghan-led elections. it wasn't like the 2004 elections. the afghans ran it and did everything that was necessary to take it happen. this is different than in 2004. >> in 2004, the afghans participated. and the participation from t afghan, it was an afghan election. we give the candidates two to three months to prepare. while our president has minimum of two outhire years. two to three months, there was no way for them to get prepared for what's happening. in 2004 i believe while being on the ground was run better. it was run by the afghans as well. >> we have a question from this

man in the front row. >> yeah, good afternoon. i'm robert with the "nation magazine." in listening to marvin's, i thought astonishing account of the election and legitimacy and proud problems, my question is about the gap. he touched on the fact that administration has done some happy talk about the painted fingers. if the clock is running out, if the population of the united states is beginning it turn against the war as the polls indicating with if we start telling the truth about this as opposed to the happy talk, to you really think the population of the country is going to become more supportive of a war that seems so hopeless, or more

likely to run the other direction? mil linn was allowed for saying that it was -- that was the war was deteriorating. and if -- when i write about this panel today, for the nation, it's going to talk about what marvin just described as a crisis of legitimacy. which to me is the real ns coming out of this election. and so how do you rebuild, general barno's support for a war that's so obviously a a catastrophe and deteriorate. >> we starting to turn to marvin on the political pend. i wouldn't say that it is deteriorating. i would to talk about the security situation. i think when things deteriorating, the answer is you quit and leave.

that is obably not right. but in the u.s. and afghanistan, perhaps marcin can talk about the election because he was just there. i think it goes back to my fourth point which was the leadership in the united states and our leadership in europe have got to recalibrate this discussion with the population of the country as to why we are there. why we are there may or may not impact what's happeni. and clearly i don't think there's any observers out there who don't view the overall trend line that's going downward. i describe it earlier this year in testimony as a failure trajectory. gentleman chris stall's challenge is to turn the failure into an upward turning trajecry here fairly soon. they are going to be given more

sources. so to judge our overall objectives is probably not an appropriate way to assess what our prospects for success. the new strategy and leadership as everyone here as noted, we have to give them time to work. we don't add this an equation and expect to get it done. this is going to take some months for certain probably well in the next year by almost all estimations to see this. i don't think we can judge until we get to that point. >> let me just add hat i think we have to keep in mind that the overwhelmingly afghans want their government to succeed. they are not completely lost faith in democracy, participation in being able to express their views freely, they

do not urn for the turn of the taliban and that kind of government. and -- we -- and it has to be stated over and over. we had this trust and confidence for several years. we scanneddered by our inaattention and underresourcers of the effort. and it's only that i think we are becoming fully aware of this and we are doing something about it. but we still have the ability here to have our interests in the afghan's interest coinside. and i think that's what we have to strive for. what we have to avoid at all costs and the soviets found this quickly is to be viewed as as occupier. we aren't there for just our interest. this is the danger of putting so

much weight on al al qaeda. not there for the interest but interest that are mutually ones that we gain from. so i think we have to maintain some optimism. we have to convey to the american public too that this is not a loss. because if it is, not only are the afghans going to suffer terribly, but we're going to pay a very heavy price. we learned what it was in 1989 to walk awap. and the price we paid, the price will be much greater this time. >> i think we have time for one more question. sir right here in the middle. >> thank you very much. i'm from the british embassy. david, the question is probably for you, we talked about some of the physical aspects and the

election and military. you mention some of the economics. but what is a valid government in afghanistan going to use as an economic policy. we talked about strategy, what is the economy base that they are going to be using to rebuild the country. how are they going to survive when our communities can't pay for their army and police force? >> i hope that's the long-term. the current afghan security forces are not supportable by afghan resources. that's a longer-term problem. in the end up to get a working economy. and that's going to be built by nickels and dimes. in the world that's a downturn, people are competing for resources. even things such as the:investment in distraction. we talk about pipelines. so it's going to have to be built up a little at a time. it's already been done in kabul. one used to say you have

capitalism working in one city. and it's making the vast majority 3/4 of the population are out there and depend on agriculture for their money app lot of investment has to be made in the agricultura world. but you're dealing with a country which it's a poor country. if you haven't been tre, you have to get your western idea of poor and replace it with the afghan idea of poor. so you have to reach with the afghans and build the economy. the other thing that's supported, the afghans are going to say is the mosque. you may not understand, but it's very important to them. and if they can use that to win the hearts and minds of the 75% of the rural afghans, that's a great problem indeed. >> with that i'd like to thank the audience. that's some good questions. we especially thank the panel.

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[inaudible conversations] [inaudible conversations]

[inaudible conversations] >> i want to let you know as that event comes to a close we had planned to bring you live coverage of today's pentagon briefing. we are not going to be doing that. we'll move on to our schedule to three day of funeral services begin for ted kennedy. we passed away elier this week.

shortly, the family will be moving to the kennedy library. tomorrow a memorial service at 7 p.m. and saturday a funeral mass at 10:30 a.m. eastern to be followed by pure real at arlington national cemetery. you can see all these events live. >> tonight's white house briefing coming up shortly. we'll have it for you live. past the martha's vineyard. until then, your phone calls for

the "washington journal." >> host: a photograph of the flag. president obama calling kennedy r his extraordinary good that living on. some of the detains on what's next. you may remember a letter sent to the governor asking for a change in the law. from the story this morning on boston.com, governor patrick says he is breaking the silence of the future and embracing kennedy's request that the governor be given the power to appoint until voters can choose in a special election. and tom on the phone. this question came up a lot following the election of obama with a number of senate have -- vacancies. there seems to be in clear

mandat in what states should do. >> well, states have some discretion -- >> we're going to leave to go live to martha vineyard where today's white house briefing is taking place. deputy white house press secretary is speaking. it just got under way. >> the president when he ran for this office knew there was no days where he was completely down. i do think he's had a chance to spend some time with his family, basketball, tennis, and do a little relaxing. >> two questions, dr. kennedy's death has left juggling the banking and health. how concerned is that he has too much on his plate and not going to push through the reports? that's the first question. the second question is the state

nearing the compromise on the united states for a complete -- are they prepared to compromise if it helps to jump start peace talks with israel? >> wel for starters, senator dodd is one of the most able and competent supports. he's worked on health care to financial regulation to a whole host of other things. but in terms of whether or not he can handle the load, i don't think anybody doubts it. those decisions are up to the committees and the united states senate to make that, not the president. i'm not familiar with the report. but i will get back to you. [inaudible question] >> i don't have any preview of what the president is going to have to say on saturday. but it is something that he

obviously takes very seriously. he has been working on it, the speech writer who he works, but this is going to be a personal state that he takes on saturday. [inaudible question] >>hat's right. [inaudible question] >> i don't know that there's a plan for that. they won't get in until very late friday. they will probably go to the hotel and go to bed. yes? >> is that approprte? >> the president's view that we have all experienced a pretty big loss. americans are going to have different reactions and find different ways.

he's not going to make a comment on what every single person does to memorialize or remember. there'll be a time when it's appropriate to have discussions on different ramifications. but i don't think anybody thinks that now. >>[inaudible question] >> i've seen some of these quotes. i've obviously read the reports. but the president isn't in a place where he's looking to referee what everybody is saying about the passing. major? >> the new situation with the president and the interrogation interrogations. what i'm ting to figure out is if there's a discriminate about taxes, who will make the final decision, national security, fci, or the president?

in the questions or messages, anything like that, do you have a comment? >> sure, the president's -- the president accepted the recommendation of the interrogation and detainees that you mention the high value detainee interrogation. he thought it was bt way to take down some of the bare yours to sharing some of the mt important information as detainees in order to use the best sign terrific proven methods in order to keep the american people safe. when it comes to operational decisions, those will be made by the group. obviously, there's a director of the head, and he will make operational decisions. just like other processes, if there are agreements, they are able to come together and make a decision. it will be made by the director

in that group. no, the director that's housed inside the fbi. [inaudible question] >> not that i know of. that's right. >> how will the people be involved in this overall process as you guys put together that's working? >> well, obviously there are a group of intelligence professionals inside the u.s. government who know best how to handle high-value detainees and all sorts of detainees. the president has faith they will make the right decisions based on what's the best available science and proven methods until the president is responsible for any decision that gets made. but there will be folks in the intelligence communities who are making the designificances about

the gledges gathering. >> what about the day-by-day operations? are they brought in? >> well, in the same way that the president has a lot of different issues that we deals with on a day-to-day basis. these issues have to deal with people many the american people safe. we will be kept up to speedith what's happening. the operational decisions will be made inside of that. >> i have this idea that the does ted kennedy and the legislation leaves the senate? will he remain in ted kennedy's honor or some of these other devices being subjected to elevate? >> i know there's a lot of these decisions happening. and there's going to be a lot of

decisions that continue to happen. but the president's view is today is not the appropriate time for him to be commenting on that. >> it's not? >> well, the president's view is he's not going to discuss these plans right now. >> the federal judge says that the federal reserve -- [iudible] >> i know. i don't have an answer. i'll have to get back to you. [inaudible question] >> the president is obviously shown a higher level of transparency than any person in the history of the government. his view that w have done a lot to bring transparency in all areas of the executive branch on the specific issue, i'll have to get back to you. >> and does the president create

aig's ceo be approved? >> that's obviously a process that's ongoing. the committee is making the recommendations and we'll comment at the appropriate time. >> the reason that steinberg is there is to nut place the process. >> lawmakers are actively engaged in the debate over health care. >> can you talk a little louder? >> i said lawmakers have now been actively involved in health care debate. has the president been able to test the temperature on health care reform and if so, how? >> well, i can say that this week secreta and nancy has been very busy working with both members of congress, their

staff, and different groups who have a stake in this. so the president's view that we're continuing to make process on the health care. the american people are still four squares behind making some progress. he still believes that we will be able to get a bipartisan bill through the house and math. and that's the end that we are working towards. i would say that the temperature right now is that the american people want and need health care reform. and the president is committed to getting that by the end of the year. >> the reaction that news repor that the health care have been out. >> well, health care reform is obviously a very difficult thing. over the course of the last 60 years a lot of different presidents have tried to bring about comprehensive health care reform. and the reason they haven't been able to get it done is it's not ju a serious of politically popular decisions. but we've been able to make more

progress that has been made before as t doctors and nurses and hospitals supporting the health care reform. it's been passed through four of the five committees that need to pass it on. cause cost have gatt gotten to a point, not only will health care be in crisis, but the deficit, we just will not be a physically sustainable path. so the president's view is we've made a lot of process already. we continue to make progress. we're going to be able to work towards getting the bipartisan result. and he'll continue to work towards that end until we get health care reform for the american people. >> there are some economists out there that are saying because of the middle-ass taxpayers will have to be paying. does the president still hold that? >> in the last 24 hours there

has been a number of analysises written about the ted kennedy's influence. number one, the president might not be president if it were not for ted kennedy. do you know how president obama feels about that? and number two, the ideology on health care of president obama. do you have any sense of how much the president believes he's been influenced over the years by ted kennedy? >> well, i don't know that i could improve on what the president has to say in his personal statement on senator kennedy. so i was reference that for starters. but in terms of the impact that senator kennedy had on president obama and his time as president and his campaign, it was obviously incredible. and inmeasurable in some ways. because he endorsed president obama as aandidate at a tim

that provided canyon burster for the cane. it was a psychological boost that would be hard to replicate in any other way. he was a colleag of his who help show him the ropes in the united states senate, one of the first people that then senator obama met wit after he was elected to get a good sense of how toe the best most protective senator that he could. and over the course of the campaign and his time as a senator, he did provide pnty of advice and guidance for senator oba and now president obama. and it's hard to measure any of those different things. he was a giant to the united states. but also in president obama's life. >> forgive me if anybody already asked this question. is the white house in any way at

all involved in the situation in massachusetts and trying to get a short-term replacement? >> in, the president's view that than kind of decision is the decision of how massachusetts is represented in the united states is for the people and legislature and governor of massachusetts to decide. >> given some sense about how the president is going to rejoin the health care reform debate after the vacation? >> i don't have a lot. he's going t continue to do a lot of things that he's done before. he's going to put his force behind working with senators, members of the house, both democratics and republicans, he's going to be talking to the american people about how important health care reform is what he thinks is best for our country. i think that you will see after he gets a little time to recharge and in champ -- camp

david, and he's going to come back as roaring as before. >> the events that you talked about next week don't deal with the health care reforms. >> i'll get back. when he gets back that's when. but as i said before, his staff and cabinet are still working tremendously hard to make some progress. >> you talk about health car and all of health care. >> that's not the plan at this point. but we will make sure you know. >> there today, rushing aside the need for presencive health care reform, he suggests that if there should be smaller steps, tax moves, other things other than what you call massive government overreach. that going to be a major

impediment? >> well, the president, i don't think there's any surprise that republican leaders are not four squares behind. there's been a lot of misinformation about what health care reform means. i saw yesterday there was a fake poll that was sent out to republican donors that contained a lot of the different misinformation that there's been in the health care debate. things like would you agree or disagree with politicians using voters roles to determine what nd of health care? there's a lot of stuff that we've had to knock down. what we are focused on is working with democrats and republicans who come to this debate looking to me process on health care reform. th psident still believes that we're going to be able to get a bipartisan solution to the house and senator. >> even though the questions for

the voters in massachusetts about governor. how concerned is t president out that vote? given the narrowness with which the whole issue might be decided. >> you know, i addressed this in the beginning of the week. the president's view is he's going to work to get every single vote that he can. i don't think that anything that has happened changes the president's opinion n. that it's up to the people of massachusetts to decide. that's just not a scale that he's going to put his thumb on. >> can you go back to the vacation stuff here? do you get a thing wre details are about what the work out is like in the morning, what process you've made through the -- when you suggest that he was going to read. anything else about you know the private relaxing that he's been able to do?

>> what other detail can you give you? not a ton. i don't have any exact process update on the amount of reading. but i can tell you that obviously some things have come up over the course of the week that have probably cut into a lot of the different things he's done to relax, including his reading. but, you know, we're out there on the basketball court yesterday. and he's as much trash as he usually does. that's the rumor from the golf course as well. it sounds like the relaxing is happening at an appropriate pace. >> what kind of basketball courts? >> yes, it's just a little half court. >> we're getting a number of questions about that. what about him riding a bike? >> you know, i heard that. it was a bicycle helmets. i know that he generally does wear a helmet when he rides. i don't know. i know he generally

does,-supports the wearing of bicycle helmets. i've heard the other folks with him were all wearing helmets. i'm not going to be get into the president's salary. >> the president is calling the afghan election given the increasing reports of fraud are still coming out. >> well, for starters, the selection in afghanistan are viously the first election that the afghan people has been able to conduct themselves for the last 30 years. the president's view that we're all waiting for the results to trickle in just like everybody else. but we think that with the mechanisms in place to address any allegations of fraud that they will work. we're waits on the process just like everybody else. >> the israeli prime minister

said today it as now time sanctions against iraq. the europeans are going to move this way also. do they think it will be going down after september? is there any chance of 11th-hour message. >> well, the president view that iran should come back to the p5 plus 1 discussions. the international community is going to get together at the end of september and talk about these issues. i'm not going to say anything here that's going to predetermine the outcome. :

>> in terms of the president health care initiative, how big

is it not to have senator kennedy around? >> i think i addressed this earlier. people are going to have discussions about this. but the president doesn't think that today is an appropriate time to dohat. [inaudible] >> i don't know if they are back to school meetings on monday. interesting question. i can see if i -- i know it is for some schools. i don't know about this. i will find out if there's anymore that i can give you later. but that is probably nothing we put on a public schedule. [inaudible] >> the agenda is to try to get a little rest and relaxation. anything, it's added or put on the schedule, yes, he is looking to get a break from his vacation. [laughter] >> is the president paying any

attention,. [inaudible] es he have confidence that if he manages to pass something that will remount. [inaudible] spec when it comes to poll numbers, just like what a lot of other president came into office, came into very high approval. but the president never thought that his high ratings were something that he should just put up on a shelf and meyer. his view is that he was senior to bring about some fundamental change to the way that we are doing business in watching 10, to the way americans get health care, to the way things are going in iraq and afghanistan. and to do that you have to make some difficult positions. and i don't think the president's view is that if he made all the different, difficult decisions that he made, that every american would agree with him everything of time. in fact, it's really easy as the president has had to stay popular in washington if you

just don't do anything at all. but he thinks he was sent there to do quite a bit. and along the way, sure, there will be people who disagree with him. but his view is that he has got to make tough decisions in order to get things done. [inaudible] >> i don't know about that specifically, but the president does think that when you make decisions your numbers tend to go down. [inaudible] >> i think major is probably happy didn't you call to the principals office. robert? [inaudible] [inaudible]

>> i can't because he is still working on it and i don't want to say something that doesn't ultimately make it. that is obvious he going to be very personal and something he is working on. very hard. and i don't want to get ahead of what he actually says. [inaudible] >> no. know, that was always tentatively scheduled. just the other we are a little closer we are able to lock it in. guesser? >> can you give us a sense of the level of concern the white house has on the tropical storm that may impact new engla idler that possibly affects the president's vacation, the folks that are here? >> we are monitoring the tropical storm very closely. obviously, we have some of the smartest weather folks in the world working for the federal government, and we will make sure that we acted properly in terms of how that goes. obviously these events can be etty unpredictable so we are watching like everyone else. >> can you talk a little bit

about what the girls have gone on vacation, and also what will happen. [inaudible] >> well, i suspect, and if that's somebody's phone, i would appreciate it if you would turn it off. so far, the girls have eaten some ice cream, hung out at the arcade, spent a lot of time on the farm hanging out with her parents and friends. in terms of what they're going to do when the obama's are at the funeral, i'm not 100% sure. [inaudible] >> on sunday? .com on friday they are staying here. on sunday everybody's going back to washington. >> regarding camp david,. [inaudible] >> it was always tentatively on the schedule. we have just been able to lock it in.

[inaudible] >> yes. i don't think you can replicate such a terrific place as martha's vineyard. but i do think that he is looking to get some more rest and relaxation when he goes up there. >> questn about health care. i respect the president not say much about this today. are you concerned about losing the initiative on this issuef in fact the president doesn't say much about it now, the funeral happens -- >> i don't mean to cut you off but i'm not going to get into it today. the last one. >> has the president have any conversations with him and members of the kennedy family since we heard from him and can you share any details about what went on in those conversations? >> none that i know of. thanks. >> was the president getting as

much r&r on vacation as he would like to? >> like i said, when you're president you always have that job. and i think he's been appreciative that he can come to martha's vineyard and enjoy some of its beauty and its nice restaurant and good people. and along the way, he has gotten in some of the vacation that he wanted to. thanks. >> today's white house briefing with deputy press secretary bill burton as we move to live pictures of the motorcade for senator ted kennedy. this is taking place in hyannisport, his home where this morning the family attended a prive ms. today begins three days of funeral services for senator kennedy, who died earlier this week. the family departs hyannisport on their way to the jfk presential library in boston. senator kennedy's body will lie in repose beginning at six eastern. tomorrow and memorial service at 7 p.m. in boston. and saturday, a funeral mass will be held beginning at

10:30 a.m. eastern. to be followed by burial at arlington national cemetery at 530. you can see all of these events live on c-span. >> in 1959 in the heat of the cold war soviet premier nikita khrushchev took an unprecedented two-week tour of the u.s. peter carlson recounted that trip with khrushchev son, sergei, on afterwards. >> a number of so-called troubled banks in the u.s. ros to 416 at the end of june

despite the increased ahead of the agency in charge of saving banks today said depositors should worry about losing their money. sheila bair made that announcement at a federal deposit insurance corporation form and washington. this is about half an hour. >> this q&a will be reserved for members of media. after the chairman's presentation, at the fdic senior professional sta, ross waltrip andn willach makshort presentations and will then take questions on the data. please save your more technical questions. for the q&a we would ask you to please use the microphone before asking your question. i will now introduce chairman bair. >> thank you. welcome, everyone. we've all seen the good news that come out on the economy in the past few weeks. our challenges remain, evidence is building to the american economy is starting to grow again. but no matter how challenging the environment, the fdic has

ample resources to continue protecting incr depositors as we have over the last 75 years to ensure depositor has ever lost a penni, and no one ever will. one of the same themes up-to-date is tt banking industry performance is as alys a lagging indicat. the banking industry can look forward to better times ahead. but for now, the difficult and necessary process of recognizing loan losses and cleaning up balance sheets continues to be reflected in the industries undermine. insured institutions pose a third 2.7 million.net laws in the second quarter. as this first chart shows, they earned 424 million net operating income, but one time losses and other items totaling for .1 billion polled the overall result into negative territory. positive net operation income was achieved, even after a special assessment of about

5-foot $5 billion to bolster the deposit insurance fund. as this next chart shows, deteriorating quality is having the greatestmpact on industry earnings as insured institutions continue to set aside reserves to cover loan losses. of all the major earnings component, the amount that injured institutions added to their reserves by far with the largest raglan industries earning compared to a year ago. as you can see, loss provisions were 16.5 billion higher than a year ago. in all, banks set aside 67 billion to cover bad loans in the second quarter. other factors that weighed on earnings included expenses stemming from write-downs of asset backed commercial paper, which increased extraordinary losses, and higher deposit insurance premiums. as of these premiums, not interest would have declined deflecting banks efforts to cut costs. the upward trend in provisions dates back to the second half of

2006, but while the early losses were related to residential loans and complex mortgage related assets, where the crisis really began, we are now seeing problems with more conventional types of retail and commercial loans that have been hit hard by the recession. this chart shows how loss provisions havgrown as a share of the industries that risk revenues. in the second quarter, loss provisions were 10 times what they were the years ago. the obvious reason for this is the ongoing need to bolster reserves in the face of rising levels of troubled loans. these credit problems will outlast the recession by at least a couple of qrters. this chart shows the amount of loans that have been written off each quarter, as well as the quarterly change in the amount of noncurrent loans remaining on banks balance sheet. that's the r segment. the chart shows that both charge-offs and noncurrent low levels are still rising. the continued growth in these

categories listed in that charge-off rate and the noncurrent low rates to historic highs in the second quarter. and as you can see from the next chart, the gap is also been drawing as degree nine, in the industries reserves, that's the blueline. this widening gap is driving the high loss provisions. and it is the reason that we expect provisions to remain at elated levels for some time. t all of the news in the second quarter was bad. taled charge-offs continueso rise, the incase was sialle than the first quarter. also, noncurrent home equity and junior mortgages declined for the first time in six quarters. and the bottom of loans that were 30 to 89 days past the duke fell across all major loan categories. are the signs of a turning point in asset quality? that may turn out to be the case. so we're going to get another quarter or two to confirm a trend. another positive during the

quarter was an improment in net interest margin for commuted banks as well as forarger institutions. this is good news for community banks as a free force ofheir revenue comes from net interest income. in many important respects, financial markets are returning to normal. combined with the positive economic news in recent weeks, we are hopeful that this will be a moderatn to credit problems incoming orders. but as our report shows, clning up balance sheets is a painful process that does take time. the process iq absolutely necessary in order to restore the industries sustained profitability, and most important, to strengthen its capacity to lend tousinesses and consumers. as banks and thrift continue cleaning up their balance sheets, more are coming onto the problem bank. the number rose during the quarter to 416. this chart shows the trends that have hit a historic low in 2006, and bank profits were at record highs.

although the number continues to increase, it is still well below the level seen below the last crisis. as you know, the number of failures have also been a. there haveeen 81 so far this year. we expect the numbers of problem banks and failures to remain elevated, even as the economy begins to recover. problem banks and bank failures also tend to be lacking economic indicators. now let me turn to our failures affecting the deposit insurance fund, or the death. first, failures cost money and the cost are charged to the dif. but one thing you should know is that the daf bows as already been adjusted downward for the cost of failures that are expected to occur over the next year. just a banks set aside reserves for loan losses, we set aside reserves or anticipatebank failures. our totaleserve consisting of both the dif bounce and a contingent loss reserve are available to absorb lses. the dif bounce reflex worth.

is also a guide for premiums for industry funded system. so when a bank fails, to the extent that we have already reserved for a failure, theoss comes ou of the contingent loss reserve. for example, when colonial bank failed two weeks ago, there was no reduction in the fund because the estimated loss had already been reserved for. we review the adequacy of the contingent loss reserve every quarter, and make adjustments as warranted. as illtrated i this chart, we have been shifting large sums to the contingent loss reserve as the failure projections have grown. total reserves are now over $42 billion to our total reserve should be distinguished from the cash resources that are too protect the positive. as the last chart shows, our liquidity to protect depositors in future to includenly the $22 billion of cash and treasury securies held by the dif as of june 30 but also the ability of our up to $500 billion from treasury department.

to sum up, a dline in a fund balance does not diminish our ability to protect insured depositors. th fdic was created specifically for times such as these. our resources are strong. your insured deposits are safe. and again, no incher depositor has ever lost a penny of insured deposit, and no one eveill. thank you very much and i will be happy to take yr questions now. >> with the fund balance at 2.4 billn, -- template for billion comedy that has been having to borrow mey from treasure to build the fun back up ithe short-term? >> not at this point i. i never say never, but not at this point in time, no. [inaudible] >> to make up for the decline in e fund?

>> another special session was likely before the end of year, and an award will be cited for the end of the third quarter about whether we do that, the timing and what the amount will be. >> do these numbers at alltel you that maybe t.a.r.p. isn't working as quickly as the government would have liked? or do you feel like that is lacking as well, that part performance will start to show up down the road? >> well, i think that's a bit apples and oranges. it is primarily been supporting a larger institution at and so the others are following more traditional market course, so i think you have to look at where thearget is to be effective of a. would continue to have dialogue with the treasury about maybe having, make t.a.r.p. look better to the smaller institutions and ca the discusss

are ongoing. >> some of the troublebanks, some of the problems that a lot of these failures have been caught by bad management. and the fdic has only been able to do it after the fact. do you see anyway that you can do it like in an early stage? even the too big to fail geishas, but also other banks like colonial have been a problem for months and months before you had to take it over. >> right. i think we have a very prompt timely supervisory history with colonial. you're absolutely right. i think one of the lessons learned of this is management is a key component of our supervisory rating. but i think what we've sn now that supervisors are putting heightened emphasis on the. it's not that we want to start picking and choosing bank management. we don't. that's really what theob of the ptuguese and the boards need to uerstand that is their responsibili. and we expect them to take that responsibility seriously.

>> gat. thank you for coming. >> good morning. i'm ross waltrip. i'm seni banking and as with the division of banking and

research here at fdic. i just had a couple of brief remarks, just edified one of the trends that the chairman identified in her presentation. after that, i will turn the mike over to our chief economist, rich brown, who will have some observations about economic trends, and then john, who is deputy director in our division of supervision will speak on supervisory issues. and then we'll be open for questions. we also have diane ellis, who is assistant director in her research who is here to answer any quesons you might have about the deposit insurance fund. what i would like to do is just take a quick slightly different look at one of the charge that chairman bair presented a few minutes ago. it is the third chart in your hand up, which shows the rise in industries loaloss provisions as a percentage of its net operating revenue. my version, which is up on the screen, shows the quarterly dollar amount of net operating revenue and loan loss provision for the industry over that same

period. net operating revenue which is the green shown by the green bars, is the sum of net interest income and total non-interest income. afd you can see in this chart the rise in the loan-loss provions, that'sheedline, but what this chart also shows is the resilience of industries revenant during this economic downturn. i think this resilience is important because it underlies the industry's ability to generate cash flow, even in a severe recession. when loss provision to eventually begin to subside, a larger share of these revenues will make it to the industry's bmttom line as profits. now it should be noted additionally that revenues have been more resilient through this cycle at larger institutions because they have greater diversification and more sources of revenue. revenues at commuted banks, it institutions with less than $1 billion in assets have experienced some erosion during this recession. and also community banks have been less successful in controlling overhead expenses

than larger institutions. but on the other hand, they've had a relatively smaller biz under loss provisions thus far. as chairman bair noted loss provisions are the main factor affecting industries of earnings performance, and we do expect industry provisioned to remain elevated in the near future. but i think it's important that we not lose sight of some of the industry's underlying strength. so without no, i will turn the floor over to our chief economist, rich brown. >> thanks. good morning, everyone. one of the things of today's report as chairman bair pointed out is that i like between what happened in the economy and what happened in the banking and thrift industry. particularly with regard to the bumper -- low performance and loan growth. it wasn't that big downturn in housing and mortgage credit that led us into the recession at the end of 2007. and the financial market is ructions last fall that led to a significant deening of the receion. while this has become both the longest and deepest recession since the 1930s, it appears now to be at or near an end. through the downturn, lenders

have been reluctant to lend as they try to clean up their balance sheets and borrowers have been reluctant to borrow as they cut back on their spending. this chart whi is in your packet, shows the total loans and leases held by fdic inred institutions decline by one point for present during the second quarter. this is the fourth consecutive quarter of decline. now how lonthis declineill persist is hard to say. as you see, the 1991 -- 1990, 1991 recession that we saw 10 consecutive quarters of decline whereas after the 2001 recession, loan balances fell slightly in only one quarter. credit problems in this downturn are more reminiscent of the situation in 1990 and 1981. however, cap erasures were generally higher now than they were then. meanwhile, capitalarket activity remains extremely important to the credit situation for businesses and consumers. corporate bond issuance of this year has already reached a

record $1.1 billion, as investment grade firms account for it to the market usually at very low rates of interest. as we've discussed in previous briefings, private residential mortgage-backed issuance remains severely impaired, we have seen less than $30 billion worth of age with so far this year. and commercial mortgage-backed isance is even weaker, less than $1 billion in issuance so far thisear. with that said, total u.s. mortgage origination, actually rose in the first half of this year compared to 2008. and that is mostly on the strength of lending backed by e gse is, by the f and va. and of course banks and thrift remained very active in originating these conforming mortgages. going forward, as the economy begins to recover we will see the balance sheet cleanup continued for brinks and thrift and we will look for low demand to rise on the part of businesses and consumers as their confidence improves. i think therd's also a general expectation that a greater

portion of total credit market intermediation will take place on the ballot sheets of banks and thrift than we have seen through much of his decade. and tha is provide acid to asset growth for all sizes of institutions. so with that i will turn it over to john fortune, john is associate director in the fdic's division osupervision and consumer protection. >> thank you very much, rich. good morning. as has already been communicat communicated, risi credit cost continue to adversely impact a bank performance. deteriorating asset quality and its ultimate impact on capital levels remains the most significant supervisory concern. starting first with cstruction and the development port louis, we continue to see significant terioration. depicted in chart one, net charge-os are up dramatically from the first quarter. despite the level of charge-offs in over 14% decline and outstanding balances from a year ago, the volume of noncurrent loans continues to rise.

noncurrent rate from one to forfend mortgages continue to increase as well. though total past-due and noncurrent loans increased at a slower rate, than in prior two quarters, performance remains much worse at larger institutions. as reflected in chart two, other consumer portfolios continue to experience increasing loss rates. while institutions wi credit card exposure have responded by restructuring terms and have significantly reduced unused commitments over the past 12 months, performance is dependent upon the strength and the economy. over the last few corners, we identified commercial and industrial loan portfolios and nonconstruction commercial real estate portfolios as emerging risk. chart three shows noncurrent and charge-off levels continue the rapid acceleration. deterioratn is more pronounced in larger institutions. however, it is noted across the

industry than giving the lagging nature of performance indicators for these credits that deterioration is expected to continue. nonconstruction related commercial real estate loans are exhibiting deteriorating trends with increasing net losses and noncurrent levels. particularly for loans. [inaudible] family properties. for the determination with these portfolios is anticipated. as one would expect of the increase in noncurrent loans and charge-offs has put pressure on loan loss reserves. chart four shows provision expense increased in the quarter accelerating noncurrent loans and net charge-offs resulted in a continued decline in loan-loss reserve coverage. the adequacy of institutions reserve balances and timely loss recognition remained supervisory priorities. increased to 416, with total assets of $300 billion. up from the first quarter number

of 305, with total assets at $220 billion. we expected deterioration in credit quality to add to the number of problem institutions and the others. and with that we can take your questions. >> can you tell us -- >> stepped to the mic please. >> that's just the 100,000 download, right click. >> that's correct. >> so how much is actually -- how much ensure deposit is there when you take the unlimited guarantee? the unlimited deposit accounts gimmicks of the transaction account. object. the transaction account guarantee as about another 700 billion, that's deposit that we are guaranteeing in non-interest-bearing transtion account. while we don't have precise number is yet on the amount that

the temporary increase to 250 will cause, i think we've estimate another 15% increase in ensure deposit. so that's another 600 billion. >>he tag at the end of quarter was 722 billion. >> can you give a revised date you have a revised figure for the anticipated losses to the insurance fund over the next five years? has that been upwardly revised? mac we have not made that revision. were not updated that number, those numbers yet. we're in the process of doing that now based on this data. and we will be doing that for the board, you know, in the near-term. i don't have a number yet. >> can i ask about the contingent loss reserves? m. iatrogenic record that a portion of that is in cash and a portion of that is in some other

form? >> well, the contingent loss reserve, as this chart shows, it's a liability, and it's a sensually an accounting entry, it doesn represent days when we increased the contingent loss reserve, we areeducing the dif balanced by the amount of losses we expect to occur over one year. there is no result, there is no cash impact, result on any assets. it a liability on the deposit insurance fund the balance sheet. >> let me ask it on the assets of people holding in addition to cash? >> okay. sugared the other assets as the shows we have about 22 billion in cash and cash equivalents, and in other assetsf 43 billion, largely receivership, failed bank assets. >> does that include the portion of the reserves, a portion of what is already in the reserves

are the assets of other institutions? >> well, no. the contingent loss reserve is what we expect to lose in the future. that's what we expect to incur in the way of ban-- losses at a bank failure occurring in the future. when the other assets are, represent assets that we have acquired from failures have already occurred. so they are sitting on our balance sheet at a market value. so we have already recognized the losses associated with those bank failures. >> so i guess i just don't understand this. so you've got 10.4 billion u.s. collected and you're ready to collect and fill institutions in the oven 32 billion video set-aside? >> let me start. 10.4 billion is thfund bance. you consider it net worth, if you -- is the difference between assets held in the deposit insurance fund versus the

liabilities held by the deposit insurance fund. that difference is 10.4 billion, so it sort of, you might think of it as a net worth of the fund. the assets, as you can see total, you know, 64 billion, but there are actual liabilities that we know of 22 billion. and then we have also -- we have also reduced the balance or establish another liability of contingent loss reserve for another 32 bit and. and that is just an expected loss amount. without the contingent loss reserve, the fund balance would be 42 billion. but we have said -- but we have estaished a reserve or losses we expect over the next year of 32 billion. so we have moved it out of the fundalance into this contingent loss reserve. >> where does that reserve or how is that funded?

where does that money come from? >> well, yeah, okay. it's, again it's an anticipated loss, so right now it's being funded by, you, the assets you see on the left side of that chart there. but in terms of where we would find the funds for, say, future bank failures, that comes from cash and cash equivalents. that is why the quiddity -- liquidity is very important and the fund balance. >> it's very important i think it is a push between the liability side of the fund and the asset side of the fund. the liability side are claims on the fund through losses that are expected in the near term beuse contingent loss reserves and an reserves against losses going forward. the financial resources that the fdic has at its disposal to

protect insured depositors of our on the asset side of the bounds she lazy to $21.6 billion in cash. and we're turning more assets to cash as the receivership's go through their process as well. cash also comes in through assessment. that icash. i think the point here is those cash resources can be bolstered, if needed, through order barring a 40. that is indicated in the chart as well. >> i'm just trying to t specific examples of what are the -- >> the resources are specifically excluded from those cash balances. that should be emphasized tht these are the cash balances that relate to the deposit insurance fund it so. >> so these are special assessments and there are regular assessment in the industry? >> it comes from assessments, and we are really collected, it mes from interest woodburn on

our investment corporation corporation on the. that is how we have generated revenue in the past. the point is we're trying to make sith this chart is that we have $42 billion in sources available to cover future bank failures. >> and cash? >> that's right we have $22 billion in cash right now that we would have to pay out, right. >> the other resources are more ill liquid assets. essentially failed bank assets. but if we were to come into, if we were to use all the 22 billion that's when, as would makehe point up there on the left, that we could borrow to get cash to fund future bank failures. >> so when you say you have 42 billion, which were sayinif you already use money to buy that and you're holding it on

your balance sheet and so therefore you are counting as part of it? >> yes, we're counting that as part of our assets. yes, we are counting assets that we have acquired from fairbanks on our balance sheet. and they are assets. we will receive a cash from those in the future. we will receive, we will collect on those assets in the future. they are not cash day the. >> but what you have in cash of $22 billion? >> and a look at the $22 billion as a static number all the time. all the time assessments come in, assets are liquidated. that cash number, we have other sourceto build that cash number as will. >> and we do breakut, sorry, i just wanto inject. we do breakout the factors, the change in the balancing table and your fun section. we show with the assessment

revenues have been overtime, interest on our investment in securities and other, realized gains on sales of investment and other sources of income. >> when is the last time the fund balance was as low as 10-point for? i think it was early 1993. 1993. can you discuss this point, sort of whether we are near or at peak in terms of the liquid is related to commercial real estate? >> on the commercial real estate, one of the thingthat was mentioned earlier, there is a lag in the tiny. and we expect commercial real estate to continue to deteriorate over the next several quarters. the degree to which it

deteriorate will be dependent on a lot of factors. someanks specifics, some economy related. but overall, there will be a lag in the timing so we expect to see more deterioration. i think there are two phases to that. the construction and development loans, the land acquisition loans, thinkf that sort that have already, we've seen large increases in problem loans there. that is sort of the first face i think people are concerned now about the income producing properties, and again while they have more stable cash flow to fall back on, financing is difficult because the cmbs market as i mentioned. in my remarks, and because the loss of 6.7 million jobs in this recession has really cut the occupancy and some of those office projects and that sort of thing. i think there is a distress there that will see in the next couple of quarters. >> a question to market our fair value practices. if there. if there'll be changes on january 2010, since you have a lot of these hard to value

assets already, are you going to anticipate these changes now since these are not listed and how are you doing t mark to market evaluations at this point? >> are you talking about mark to market for our own fdic assets orhe bank assets? >> both are coming as if you have under control of the failed banks. >> let me clarify one more time no. are you talk about the way we are sort of supervisory authority with regard to the banks? >> know, what assets you have when you take over a dilbeck and how you balance that and does that make different how much available cash and money to have. >> right, right. okay. when we -- when a bank fails and we acquire assets from the failed bank, we mark them to market at the time. and then we periodically we value them, you, based on the expected market i add that i'm. >> no different than a bank. we have to revalue thein acrdance with accounting and

both said they will be remarked. >> there will be changes in 2000? v-neck there will be some changes in now you. >> what are the conditions. [inaudible] is there a number you're looking at? >> well, we would essentially have toeplete that cash and cash equivalents amount. >> the 42? >> no, the 22. we would essentially have to no longer have enough cash and cash equivalents on a balance sheet that our balance sheet would have to be imposed and highly of other assets, more ill liquid assets and we would need the cash to resolve the next bank there. and in that sse treasury borrowing, if that were to occur would not affect the fund balance that it would be an expansion of the balance sheet on both sides.

>> what was that number last quarter? what was the cash balance? >> sorryi had to turn to our accountant. about 25. >> can you use the microphone? >> any other questions? >> thank you very much. >> funeral arranged for massachusetts senator ted kennedy are being finalized. tomorrow the senator will lie in repose at the john f. kennedy library in boston.

>> how is c-span funded? >> private donations. >> taxpayer? >> you know, grants and stuff like that. public television. >> donations. >> i don't know where the mone comes from start.

>> federally? >> contributions from donors emac how is c-span funded? america's evil companies creates event as a public service. a private itiative. no government mandate. no government money. >> running up in five minutes, a senate hearing on detainee trials being proposed by the obama administration. we recently spoke with a pitol hill reporter to learn more. >> josh rogin of congressional quarterly, why is congress considering an overhaul of the procedures governing military commissions? >> this would actually be the third iteration of the military commissions process since it was begun the bush administration so many years ago. the first version was ruled unconstitutional by the supreme court in the 2006 case as congress then established the military commissions act of 2006 would reform the commission, but president obama said when he assumed office these commissions were not up to the standards that he thought were fair and just an representative of american values.

so he pledged to reform them for the. that's what they are doing now, and the bulk of the work is taking place in the context of this year's defense authorization bill. >> what are some of the changes they would like to make, and wh >> some of the things that are in the bill right now are changes to how detainees would be able to defend themselves indicate that they were to come to trial under military commission. they would be able to changehe rules related to coerced estimate, testimony that was gained through maybe harsh interrogations. also, whether or n the detainee has a right to choose his attorney or his legal represention. also whether or not hearsay or third party edence could be admitted. so these are some pretty big changes that seem to address basic rights that the president and some of the congress believe that detainees are entitled to. >> aliquippa review the purpose of the military commissions and how they might apply to the detainees that are being held at guantánamo bay? >> scheppach the military commissions could apply to many but not all of the detainees that have been pked up in the global war on terror.

mostly in afghanistan, sometimes in iraq. since 2001. the bottom line is that hundreds of these detainees have been held without any real legal processes to determine whether or not they are guilty of crimes that they had been detained for. and this process have been going on for years and years. right now there are 230 detainees left in guantanamo bay the adminiration has said that they will refer many of these two military commissions. some could be tried in federal civilian courts. the details of how that exactly will be worked out is not in pain in this process and really mackler at this point. >> let's look at the political lansky but his overall. who want what? >> the president was to inform detainee policy he wants to start from the drawing board and just go back and rewrite the way that america is going to deal with detainees in what could be a very long battle among terrorist and extremist around the world. the committee led by senator levin is looking to make sure that detainee rights are preserved in a way that could meet a legal challenge such that

these trials coulde sustained anreally hold the force of law. republicans in the senate have somewhat a different or do they want to make sure these detainee are not granted to many rights, that they are not granted what they will consider the constitutional rights that should be reserved for americans. some of those rights including due process rights, might be interpreted to apply that if these detainees were then acquitted they might be able to be released. and this is a concern of many republicans on capitol hill. >> your stories indicated this might end up being a part of a broader defense authorization bill. where is that bill in the legislative process and what's the timetable for getting it done this fall? >> the bill has been passed by both the house and the senate. there are separate versions. the commission's language is the extended link to this will be resolved in conference. it's important to note that when this bill is passed, which will be in september probably, has to be done before the october 1 start of the new fiscal year. it will not address many of the remaining detainee issues. namely, who will get tried, when will they get tried, and where will they get right.

those are the real big issues that remain for both the congress and it ministration to grapple with well into the autumn. >> josh rogin of congressional quarterly. we thank you for your time. >> thank you. >> justice department officials say only voluntary statements from guantanamo bay's detainees will be used in proposed military trials. and testimony came during the senate armed services committee hearing from last month. senator rl levin of michigan is chairman. it's two and a half hours. >> [inaudibleonversations] >> good mning, everybody. the committee meets today to consider the important issue of military commissions. and the trial of detainees fo violations of the law of war. on june 20, the committee unanimously voted to include a provision on military

commissions and the national defense authorization ask for fiscal year 2000. this bill has now been sent to the full senate for its consideration. i thank ouranking memr, senator mccain as was senator graham, and all the members of the committee for their work on this important matter. in its 2006 decision in the hand in case, the supreme court held the carman article three of the geneva conventions prohibits the trial of detainees for violations of the law of war, unless the trial is conduted quote by a regularly constituted court affording all of the dicial guarantees which are recognized as indispensable by civilized peoples, closed all. the court concluded that quoted adultery made a court cynicism are the court martial established by congressional statute, closed quote. but at a military commission can be regularly constituted by the

standards of ur military justice system, or, if some practical deed explains deviations from court-martial practice, closed quote. similarly, the court found that the provision for quote judicial guarantees which are recognized as indispensable by civilized peoples requires at a minimum that any deviation from the procedures governing court martial be justified by evident practical need. the supreme court found that the military commission established pursuant to president bush's military order of november 13, 2001, failed to meet that test. the military commission subsequent authorized by congress and t military commissions act in 2006 also poorly failed to meet that test, as well, because they deviate from court-mtial practice by preventing the routine use of coerced testimony, by

authorizing relies on hearsay evidence even when direct evidence is reasonably available, and by establishing a presumption that the procedures and presidents apical and trials by court-martials will not apply to military commissions. the double failed that i just described to establish a system that provides basic guarantee of fairness identified by our supreme court has placed a cloud over military commissions. and has led some to conclude that the use of military commissions can never be fair, credible or consistent with our basic principles of justice. while the previous congress' effort failed to meet the stdards established by the supreme court in the hamden case, i believe that military commission can be designed to meet those standards. and that if they do, they can play a legitimate role in prosecuting violations of the law of war.

president obama has said that he believes this as well. in his may 21, 2009, speecht the national archives, the president said, oh, military commissions have a history in the united states aiding back to george whingn and the revolutionary war. they are an appropriate venue for trying detainees for violations of the laws of war. they allow for the protection of sensitive sources and methods of intelligence gathered that they allow for the safety and security of participants, and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts. now instead of using the flawed commissions of the last seven years, and now i'm continuing the quote of psident obama. instead of using the flawed commissions, of the last seven years, my administration is

bringing our commissions in line with the rule of law. we will no longer permit the use of evidence as evidence of statements that have been obtained using cruel and inhuman or degrading interrogation methods. we will no longer placed the burden to prove that hearsay is unreliable on the opponent of the hearsay. and will give detainees greater latitude in selecting their own counsel. and more protections ifhey refuse to testify. these reforms heaid among others, will make our military commissions a more credible and effective means of administering justice, and i will work with congress and members of both parties as well as legal authorities across the political spectrum on legislation to ensure that these commissions are fair, legitimate and effective. the procedures for military commissis have varied over the years, as the procedures followed in our military justice system have varied. the supreme court noted in a hamdan case that while procedures governing trials by military commission are

typically those governing courts-martial. the quote uniformity principle is not an inflexible one. it does not preclude all departures from the procedures dictated for use by court-martial, but any departure the supreme court idust be tailored to the exincy that necessitates it. that is thetandard that we try to apply in adopting the procedures for military commissions that we have included in the bill that we referred to the full senate. this new language addresses a longeries of problems with the military commission procedures currently in law. for example, relative to the admissibility of coerced testimony, the provision in our bill would eliminate the double standard in existing law. under which coerced statements are admissible if they were updating prior to december 30, 2005. alito to the use of hearsay evidence, the provision in our

bill would eliminate the extraordinary language in the existing law which places the burden on detainees to prove that hearsay evidence introduced against them is not reliable and probative. relative to the issue of access. to classified evidence of an exculpatory evidence, the provision in our bill would eliminate the unique procedures and requirents which have hampered the ability of defense teams to obtain information and have led to so much litigation. we would substute the more established procedures based on the uniform code of military justice with modest changes to ensure that the government cannot be required to disclose classified information to unauthorized persons. and of great importance, the povision in our bill would reverse the existing resumption in the mility commissions act of 2006 that rules and procedures applicable to trials by court-martial would not

apply. our new link which says by contrast, that quote, except as otherwise provided the procedures and rules of evidence applicable in trials by general court-martials of the united states shall apply in trials by military commission ouof this chapter. the exceptionso this rule are, as suggested by the supreme court, carefully tailored to the unique circumstances of the conduct of military and intelligence operations during hostilities. three years ago when the committee considered similar legislation on military commission, i urged that we apply to test first. would we be able to live with the procedures that we establish if the tables were turned. and our own troops are subject to similar procedures. second, is the bill consistent with our american system of justice and will it stand up to scrutiny on judicial review? i believe those remains the right questions for us to

consider. and that the language that we have included in the national defense authorization act for fiscal year 2000 meet to both test. over the last three years, we have seen the legal adviser to the convening authority to military commissions, forced to step aside after military judge found that he had compromised his objectivity by allying himself with the prosecution. we have had prosecutors resigned after making allegations of improper command influence and serious deficiencies in the military commission process. we've had the chief defense counsel raised serious concerns about the adequacy of resources made available tdefendants and litary commission cases, writing that what regard as of other procedures no trial system will be fair unless the serious deficiencies in the current systems approach to defense resources are rectified. been if we are able to enact new

legislation, that successfully addresses the shortcomings in existing law, we still have a long way to go to restore public confidence in military commissions, and the justice that they produce. however, we will not be able to restore confidence of military commissions at all unless we first substitute new procedures and language to address the problems with the existing statute. again, i want to thank senator mccain, senator graham and the other mbers of the committee for all of the work that they put into this bill and this issue. and the senat will be considering the enre bill, including these provisions, hopefully starting next monday or tuesday. senator mccain. >> mr. chairman, senator and off has asked to make a brief comment. >> of course. >> i thank the ranking member for his courtesy. unfortunately i am the ranki mber on environment public works that we have a hearing that is going on at the same time, so i do have a list of

nonlawyer questions. i will be submitting for the record since the impact of placing detainees in the u.s. presence system pretrial and posttrial, the security risks of escape, where the detainees will be tried and at what risk. the bandages of using the complex we have all seen down in the expeditionary legal complex that is designed for tribunals, the rules of evidence that are tween a tribunal and a federal court system, and lastly, the discussion, some questions about the advisability of reading miranda rights to capture terrorist. so i think you, and i will be submitting these and i appreciate the opportunity to make at cebit. >> they consider. >> i@ want to join you in welcoming our witnesses on the panel. i appreciate the expert advice and experience in these matters

that our witnesses bring to our discussions on military commsion's andy cheney policy. . . >> i'll be pleased to work with you and others on this legislion. we haven't resolved all the tornny issues that military commissions and other aspects present. we made substantial progress that will strengthen the military commission systems during the appelte review

oviding careful balance of the protection of national security and american values and allow the trials to move forward with greater official -- efficiency with just results. the senior officials of the defense department, justi department, and our uniform judge. the witnesses on our second panel have similar experience for now outside of the government. i'm particularly interested in hearing the views of witnesses on both panels on problems that has been encountered implementing the mill lair system. including the speed of bringing case to trials and what should be done to make theystem work more smoothly. and ways to deal with the important protection of classified information. whethe the systems adequately degrees by al qaeda and its operative that occurred before

the attacks on september 11, 2001, such as the bombing of u.s.s. and the african embassies. whether the testimony and trial strike the right balance between the conditions of an ongoing war and weather improvemes should be made. the definition of quote unlawful enemy combatant, or bridge rant should be modified. our hearing today is fused on military commissions and the trial of the detainees for the military trials of war, there are a number of issues related to detainee policy we must come to grips with in a fashion before we can close the detention facility. as president obama has pledged to do. mr. chairman, the detainees are

among the most difficult policy decisions this administration faces. i look forward to hearing with these and our witnesses to working with you on these matters as the d.o.d. bill moves wards consideration and the house of representatives. >> thank you so much. well, first i'll hear from our inside panel and first the general council for the department of kay johnson. >> thank you very much, mr. chaian and members of this committee. you have my prepared statement. i will dispense with the full reading of it. >> it will be made part of the record. >> i want to thank this committee for taking the initialtive on a bipartisan reform of military commissions. as you know in his speech as the

chairman remarks at the natnal archives on 21 president obama called for the reform of military commissions to work with the congress to amd the act of 2007. so half of the administration, we welcome the opportunity to be here today and work with you on many important initialtive. military commissions can and should contribute to our nationalecurity by becoming a viable room for ting those who violate the laws of war. by working to improve military commissions to make the process more fair and credible, to enhance our national security by providing the government with effective alternatives, for bringing to justice, international terrism and the laws of war. those are the remarks i wanted toake. initially senator i looked at your questions. >> thank you very much, m johnson. next is the assistant attorney general for the national security division at the

department of justice. >> thank you members of the committee. i come from the justice department. this is my first appearance before this committee. i thought i might begin by briefly explaning, i think my work relates to have of the committee with respect to military commissions. the national security division which i ld combines the maj national security personnel and functions. and our basic mission is to protect national security consistent with the rule of law d civil liberties. and in keeping with this, we support all. including but not limited to prosecution in the article three court over the foreign military commission. in the last administration, we assembled a team to litigate

cases at gitmo. and i can assure you that assistance will continue a who led that team for the national security division is now my deputy, and a member of that team has since been recalled to active duty and is no the lead prosecutor at omc. as the president has expressed, when prosecution is feasible, and otherwise appropriate, we will execute terrorism in federal court or in military commissions. in the 1990s, prosecutorred violent extremism. like their more modern, they engaged in law fare, which made the trials challenging. notnly because it incarcerated these departments, some of them for a long time but also because it deprived them of a shred of

legitimacy. military commissions can do the same for those whoiolate the war, not only detain them, but also brand them as illegitimate war criminals. to do this effectively, however, the commissions themselves will first be reformed. an the committee bill is a tremendous step in my direction. th administration appreciates the bill very much and supports much of it. you have made an incredibly valuable commission with the bill. and so i want to thank you again for inviting me here, and i look forward to answering your questions. >> thank you mr. much, mr. kris. now macdamned. >> thank you very much for providing me with the opportunity to present my personal views of section 2037 of the defense of authorization act. in 2006 when this committee was working to establish a permanent

fakework for military commissions through the military commissions act i will my opportunities to sure share my views. at that time i recommended that a comprehensive framework for military commissions should clearly establish the jurisdiction of the commissions, se baseline standards of structure, procedure, and evidence consistent with the law and the law of war. and prescribe the offenses. it stated that the uniform code should be ud as a model to the missioned processed. i am pleased to say the committee addresses the concerns i had in 2006 following the enactment of the military commissions act. overall, i believe this legislation establishes a balanc framework to provide iiportant rights and protections to an accused, while also

providing the government with a means of prosecuting alleged aliens. i would provide two areas additional clarity would be most helpful to. the current courts rules of evidence of handling classifies information. unfortunately, the military rule mro505 does not have a robust history. mostime we have discovered that. while it has some benefits, the military rules on the classifies information fall short of our overall goals. on the other hand for other to years, article three courts have relied oned procedures act. in light of the history and experience of see pa,s well as the practical ditties with the use of mre505 to date, i

recommend using a modified one for the touch stone for military provisions going forward. second, i want to evaluate the admissibility to determine reliability. however, to assist or practioners in the field, i recommend that you develop a list of considerable items evaluated in taking this determination. those consideration should include the degree to which the statement is corroborated, the reliability and the statement itself, and to what degree the role of the person making was born. >> once again thank you for the opportunitto testify. i look forward to answering your questions. >> thank you very much, admiral macdonald. your testimony is obviously very

important to us. you emphasis that you are speaking in a personacapacity here tod. we understand that. and we would ask, however, if there are differences between the uniformavy and your own personal views that we will ask the secretary if there are any such differences. we assume mr. johnson is speaking for the entire departme. since you put is that we, we will make that inquiry of the navy. try this six-minute round here. we have not only two panels but we have a room which is reserved for some other purpose previously at 12:30. i hope we'll have enough time. so we will try 6-minute first round. let me ask you first mr. johnson. i quoted from the hampton case

in my opening remarks saying that and court and hamden said that the court marshals established by congressional. but they also said that military commission can be regular lair constituted if there's a practical need that explains deviations. we have attempted in our language to do exactly that. and my question fst of you is in your view does our bill conform to the hamden standards? >> as you know hamden requires and hamden was at the time where the military commission act of

2006 did not exist as i recall. but the holding of hamden was that the military commissions, and i'm not going to get this exactly right, but the military commissions should depart from ucmj courts only in situation of practical need. the proposed legislation, in our view, definitely brings us closer to the ucmj model. and the circumstances under which the military commissions con templated by this bill and tmj courts are in our judgment circumstances that are necessary given the needs here. for example, there is no mir rwanda requirement imposed by

this legislaon on article 31 is specificically, and article 31 is what called for miranda warnings. the legislation also takes what i believe is a very appreciate and practical approach to hearsay. as you noticed in your remarks, the burden is no longer on the opponent to demonstrate that hearsay should be excluded. there is a notice requirement in the prosed legislation. if the proponent of the hearsay can demonstrate reliability and materialality and the is not available as the matter given the unique military operations and intelligence operations, the hearsay could be admitted.

military commissions fundamental ly differ from ucmj courts in that most often what you have in military justice is punishment of the a member of the u.s. military in violation of the ucmj very often directed of some sort of domestic nature. military commissions of the violion of the law ward the very often prosecuting people captured and given the nature of the way evidence is there needs to be a recognition that the military expects to change how it does biness, engage in election -- evidence collection on the battlefield. the way this legislation deals with the hearsay rules, i think, is quite appropriate and i would say the same when it comes to rules on authenticity in this

proposed legislation. this is not a requirement like you would see in ucmj courts or civilian courts for what we in civilian courts would know thers a strict chain of justty. there's a more practical approach given the needs of military operation and intelligent collection. >> can i interpret you there. if you could expand any places where we fall sort in complying with the hamden's standard. you could expand your answer. you only have six minutes. >> mr. kris let me ask you representing the department of the justice opinion in your judgment do you believe that this bill is drafted with these provisions to conform to the hamden standards? >> yes. to the extent that the

uniformity principal applies to a created system of commissions, thinkt is met and mentioned some of the differences. and i think his justty indications make sense. we have some recommendations for change. those aren't rooted in the principal at all. >>nd while you -- i'm asking you questions. it's been argued that it's not appropriate for the department of defense to prosecute terrorists. do you believe that it is appropriate fothe department of defense to prosecute alleged terrorists with these military commissions instead of the department of justice prosecuting in article three courts? >> yes. i think the president made clear in his may 21st speech we will prosecute in federal court and where there is a law of war violation and under the reformed system of military commissions, we will also prosecute

violations in those commissions. i think the president said it best when he said we need to be using all instruments of nation power against this add instry say. and that including military commissions. >> thank you. my time has expired. senator mccain. >> well, thank you, mr. chairman. mr. johnson and mr. kris, if trials were held in guantanamo for the united states, should there be any difference in t proceedings? >> senator, the if military commissions were held in the continental united states, i think that we have to consider thpossibility that some level of due process maypply, and that the courts have not determined to apply though. i think that assessment has to

be carefully evaluated and carefully made. i think that -- >> what you are saying is you were there could be some significant diffence in procedure if the trials were held in guantanamo or the united states of america. >> i'm not sure i would see a significant differen. >> well, i think it would be important r this committee to do with your view. it might be help shape our legislation. if they are going to have rights in america as oppos to guantanamo, i think the american people and committee should know that. >> one of the things i have mentioned in the prepared statements is the administration believes that the voluntary should apply that tak account of the realities in the military operations. and we think that that is something that due process may require particularly if commissions come to the united states that th courts may

impose the voluntariness. >> well, you and mr. kris will provide for the record what you think the difference is in the process would be to the location of those trials. i think it's very important, it certainly is to me. mr. kris in your statement, on page two you said it's the administration view that is there's a serious risk that courts would hold of involuntary statements of the ccuses and proceedings that is unconstitutional. does that infer these individuals have constitutional rights? >> yes, i do. >> what are those constitutional rights. people who are citizens of the united states of america who were captured committing acts of war against the united states. >> our analysis senator that the due process clause applies to

military commissions and imposing the constitutional floor on the procedures that would governor such commissions including against enemy aliens. >> and what would those be, mr. kris? >> well, they would be a number of @ue process-based rights. one of which we mentioned we think there is a serious risk at courts will find that the are voluntary in the standard is required by the due process clause for admission of -- >> so you are saying that these people who are in guantanamo who were part of 9/11 or committed acts of war against the united states are entitled to constitutional rights of t constitution of the united states of america. >> within the framework that i just described, yes, the due process clause guarantees and encloses some requirements, that's the way i would put it, the on the conct and rules

governing these positions. >> that's very good. i have never proceeded under that in legislation. the fact is they are apply of the rules in war in geneva. i didn't not know any time they were given the rights for the united states under the constitution. >> they would not be entitled for the prisons of the war. >> no, they are the right of the enemy combatants. >> yes. okay. thank you. >> but we now have established that it is the view of the administration that enemy combatants or belligerents whatever you'd like to call them, are now entitled to rights under the united states -- constitutional rights of the united states citizens.

>> not at all. i don't think that's right. both in terms of how we would describe this as a due proce requirements that applies to the commissions even if they are prosecuting enemy aliens and i don't think it's to equate the rights or the rules that are required for commission proceedings against aliens, necessary with those that would apply. those might come out differently. this is an extremely complicated area of law. >> it certainly is. but your statement for the record is your admintration view that admission of the statements of the accuses in military commission proceedings is unconstitutional. >> yes. >> forever it means that they ve some constitutional rights. there are other questions by the witnesses and if the witnesses -- ifhere's a second round

maybe i'll take advantage. >> thank, chairman. to the witnesses, mr. johnson. let me begin with an expression of appreciate for the process that the administration has gone thugh to come to the point that you're at today. for me as we've gone through this deliberation about how to treat what we call prisoners of war, that is those suspected of violating lawsuits of war. it seems to me we've had a hard time putting this in the context of our own sense of fairness related to the unique war we're in. obviously, this is a war against terrorists. they don't focus on it. th don't fight for the most part for nation and states. the war may go on for a long

time. but nonetheless, it seems to me along the way there was no sense of those who were arguing that individuals apprehended should be tried in our federal courts. in our sense, i don't think that they have the constitional rights established with american citizenship. they not have violated the federal/criminal law, they violated the laws of war. i know there are some that respect the obama administration review would recommend that all of the cases go to federal court. you have not come to that that conclusion. although i have some questions -- some of theubparts for what you've done. but i think this i really a very skim and open minded very far ultimately historic process you went through and reached generally speaking the right

balance. i appreciate that you are asked a mome ago whether you thought that the military provisions of the defense authorization act, i want to ask you whether your judgment is that the military commission divisions of the mda accident are within the requirements of the geneva convtion. >> yes, senator. with room to spare, yes. and one of my personal objectives frankly is that we device a system that comports with the geneva convention as well as hamden, as well as applicable u.s. laws. i think the answer to your question is, yes, sir. >> i thank you for that. i agree with you. particular appreciate that the clause you add which is that the military commission provisions

and the national defense authorization act are not only within the requirements of the geneva but with room to spare. i agree. that we hold ourselves to a very high standard. so high that are unrealistic in some says destructive in the context of the war we are in. i agree with you that what we are provided for in this law -- legislation of this committee is well within the geneva convention. let me ask a specific question that came up in the last exchange and system -- in the testimony of mr. kris. in light of the judent of the supreme court and the hamden case, that certainly to me suggests that approval of the courts -- of the court of appeals for armed forces as the

place that used here can appeal from a judgment the military commission and the court of appeals for armed forces is not an article three federal court as you all know. why is the administration taking the right of appeal from the military commissions to article three federal courts? >> let me take a stab at tha initially at least. we agreed and endorsed the facts as well as the law. our view that we should retain the court of military commissions review and then have appealed directlto the d.c. circuit. that would be a in effect a four

tiered level of review beginning with the trial court and in our view would resemble in many respects ucmj justice because you have that intermediate level of appellate court rather than appeal directly from the military commissions trial level court tohe staff. so it would be our reference to have an appeal. bute agree with the concept of the expanded scope of review. >> is it fair to say the a@ministration changes in this regard are not rooted in the supreme court's you know, former principals as stated in hamden? but they are rooted in some other requirement or some sense of the administration of what's fair and just? >> i think that's a fair statement, senator. let me ask you just to comment to go back to what i said at the beginning and just describe in

the time that's left on my question period. why are you reaching the judgment on behalf of the administration or y the president ultimately reached the judgmenthat these cases that we're talking about should not primarily go to our feder courts? >> well, as you probably know, the president signed an executive order mandating the review of each detainees situation. review is ongoing. and as you've soon in at least one instance, a dainee who had a pendi military commissions case was transferred for prosecution in the southern district of new york. i think it is fair to say that what the president and the administration have concluded that som of these detainees should be prosecuted for the violatn of the laws ofar, that military comions

justice are appropriate for and depended on a variety of factors. in some situations you have a situation where a detainee has vittated title 18 and the laws of war and we want to detain military divisions. whether everyone or almost everyone who is depending military defendant department will stay that way, i couldn't tell. >> i think the committee has made the right saying the right of appeal to the court of appeals for the arms forces and that there shouldn't be an appeal for the circuit court for the d.c. district. thank you. >> thank you, senator. >> thank you, mr. chairman. i'd like one compliment you and senator mccain for trying to come up with a new bill. i think we're very close to a

bill that we all can proud of. of. the main thing for the public any verdict will work its way into the civilian courts; that correct? >> yes, sir. >> so no one will be inprisoned on a day they don't have their day in federal court. >> assuming they appeal, correct. >> when it comes to the idea of location, the court room in guantanamo bay is uniquely set up to do these trials. i would be interested to get your thoughts about how the location would matter. i'm not sure after these decisions treating guantanamo bay as an extension of the united states that it would matter. i woul lik to kno how location would matter. mcdonald, one of the issues that we are working with is the

materials for terrorism. i think i understand the view that the charge under the law of armed conflict. but under the uniform code of military justice, we -- could that doctrine be used here >> yes, sir. you could incorporate it in under title 18 through the assimilated crimes actnto the ucmj, and it would be charged. >> and i think that gets back to your point. system of these people can be charged under both sets of laws. that what you were trying to tell us? >> yes, sir. >> now do you agree with the theory that we can use it to incorporate material support? >> i think you could do that as a formal matter. there still remains the question material support was a law of war under that label or a different label? >> i totally degree with that debate. if you were able to incorporate th, that would resolve that issue, isn't that correct?

>> it would again to the extent that it's a viable law of defense. >> all right. thank you. now when it comes to evidentiary standards, are you familiar with the hate procedure what's they try war criminals? >> i @m not. >> one thing that i would sunlight suggest, our hearsay rules are much more restricted. do y agree macdonald? >> yes, sir. we looked at the criminal tribun for rwanda and yugoslavia >> what tms to they use? >> it's the reliability of the statement. >> the point i'm making to the committee, if you compare our military information system, particularly the fm version to an international court trial at the hag, we're much more, for lack of a better world, liberal

in terms of the protections that you would get if you're going to go to the hauge. i had no problem with that. i think that's a good thing. now let's get back to the what the courts are likely to look out in a commission trial, mr. kris. i think the bedate is a bit con pausing. it's not so much as an arican citizen, but the courts will look at these in terms of due process and they will make a judgme as to whether or not it meets some minimum standard of american court. that correct? >> that's exactly what i think. >> and i think that is correct. when y look at history of military commissions, the world war ii tal is not exactly the showcase you would want to use. thos trials hooked newpaper a matter of days from the time the evidence received and they passed scrutiny, but i think

when we look back in time it's not something we'd want to repeat. is that yourpinion? >> i mean i think -- i guess i essentially agree with what you just said. i think justice has -- i think there i some question about whether you can apply those precedents given the recent developments in the law. >> do you have a problem with totality with the test if we fill in the blanks in terms of admission of statements? >> i think the totality of the circumstances is the right best. of course the administration's position that it should be used on t voluntariness be it the voluntariness that it reflects the rlities of a war-time situation. >> and the final thought is about the difference between an article and military commission trial. one of the big concerns that we have as a nation, mr. johnson, what percentage of the

guantanamo bay will beeld off the battlefield but never to a military commission trial? >> well, a percentage or number is tough to say. as i mentioned a moment ago were our review of these are ongoing. i do think that we should all assume that for purposes of national security and the protection of the american people, there will be at the end of this review category of people that we in the administration believe must be detained for seaso of public safety and national security. they are not necessarily people that we'll prosecute. >> either the evidence is not the time you would take to beyond a reasonable doubt trial or it has some national circumstances. macdonald, under domestic criminal law is there any theory

that would just justify the imprisonment without trial? >> in our laws? >> in the military setting, is it okay to hold them indefinitely? >> yes, sir, it is. it is a recognized principal of the law of war. >> do you agree with that? >> in court in worry, do you with that? >> yes, i agree with mr. johnson, yes. >> so to conclude, it would allow someone to indefinely detain them wouldehe fact that we find him in the part of the enemy force they are so dangerous and not subject to being released. is that correct? a process that would render that? >> i'm not sure it is part of the initial judgment under the

-- >> that's true. it's not required. >> i think their status and that type of thing being litigated now. i to think under hamden, the court said at some point it could run out. essentially i agree with what you are saying, yes. >> thank you. >> thank you, senator graham. senator nelson. >> thank you. i think what you said in terms of geography that -- well, let me ask. does geography matter in terms of article two courts marshal commissions? or does gee of if i may matter. in other words for the military commissions hearings are held, if outside the continent of the ited states then perhaps the

u.s. court would not or could i say could not intervene to provide extra prmtections under the constitution? mr. kris? >> the analysis depends on a variety of factors. and it maybe, i think it is the case that geography would have some impact ont. but it is very difficult to be precise on exactly what would happen. >> would there be a difference on guantanamo and the bogman base in terms of geography and what the courts may do? >> i want to be very careful. that is a matter that the currently in litigation. so i would to be careful to say ihink there could be some differences but probably not go much further than that. >> whether johnson, what are

your thoughts? >> senator, much of this is unchartered territory in the courts of what rights if any would apply. i would say that it's our view that the detainees would not -- whether in the united states or any place else do not enjoy the full plan of the constitutional rights than an american citizen in this country would enjoy. >> but on the continuum, at the present time under the circumstances law, the rights at this law, but it is not clear whether or not the courts rule that the rights increase in numbers or in depth? >> well, let me try it this way. i think it is fair to say that it is our view that some level of a voluntariness requirement would bepplied to statements

that we would seek to offer in a military commissn case. military cmissions prosecution, and that the expo clause in the constitution would apply, if hypothetically these case were prosecuted in the united states. i would note, however, that in practice our military commissions have engaged in expo analysis, anyway, on accessing the prosecutability of certain detainees. and i'm adviced that in practice, many of our military commission judges have gone through a voluntariness analysis in the admissibility of statements. >> mr. johnson, can you speak of the guantanamo review task force? i think there was 79 people who

were detained at guantanamo. 544, as i understand, have been transferred with 229 remaining. is that a fairy accurate number as far as you know? >> those numbers sound accurate. >> do we know the status? i understand there are those that could be tried under article two or article three courts. do we know how many have been determined to be under article three? because as i understand, article three means they would be coming to federal courts for prosecution? >> as this point we have not coleted it. but i think it is fair to sume that at the end of the review we will have detainees in the five categories that the president outlined in his may 21st speech. there would be some in militar

commisons and some in that 5th category. some that prosecute for various reasons. but for reasons of safety of the american people and national security, we want to continue to detain pursuant to the authority granted by the congress and the supreme court holding. >> do you have any idea what that review may be completed? >> before the end of the year. >> this year? >> yes, sir. >> yeah. admiral macdonald, the written testimony you address the proper amend to the military commissions report and indicated that for the most part it addresses to the regard of the '06 military exhibitions act beyond the two issues that you highlight, are there any other matters that ought to be addressed? >> no, sir, those are the two that i would referring to that you were unable to get back in

2006. >> all right. insking where the administration proposeds the military tribunals, article two cases, is it fair to me to ask what the administration view of what it is of where to hold these based on the fact that geography may matter? >> we've ctainly made no decisions in that. congress and the supplement that was receny passed asserted its prerogatives. we know that what we have in mind. >> i suppose that's what i'm asking. >> no decisions has been made. we continue t consider various options. >> and senator, there might be some advice in conjunction wh

that. >> i think in the supplemental language you mandated that. >> thank you >> mr. chairman, thank you very much. >> mr. johnson, i'd like to ask how will the executive branch make a determination of who gets tried under article tree and who may get tried at mca? >> senator, that is something that mr. kris and i have actually been working on. as the representative d.o.j. and he's the representative of d.o.d.. as mr. kris stated, the president that,here feasible, we would seek to prosecute detainees in article thr courts. we are working through an expression of factors.

>> a preference for an article three court proceeding to the military permiion proceeding. >> and that by your preference or by the rights to be viewed opinion the detainee? >> i would state it in terms of where it's feasible, we would prosecute in artle three courts. but en you have to go through a variety of factors. for example, the identical of the victors. is there a law of war offense more effectively prosecuted versus a title 18 defense. identity in place of capture. we're working through now a variety of factors for our prosecution toonsider in terms of what direction too. i think the intend is to have a flexib set of factors because it is the cas that many of these detainees can be viewed to have violated those that are prosecutable view to violated

both the laws of war and title 18. >> macdonald, i wanted to ask you the apply process as envisioned with the four-tier process. it seems to me that if a department were charged with a federal crime, the u.s. senator were charged with a federal crime in florida that that departme has one tier appellate system to a circuit court of appeal whe it would likely appeal to the supreme court. so a department in american court, citizen of this country, would not have as much appellate tiers as would one of the detainees in this insnce. is that correct? >> yes, sir. but remember senator, we're talking about conforming the commissions to the ucm and to our courts marshal process. and our court marshal process as

all of the -- have the court of criminal as a first-tier of appellate right. after that appeal to the court of appeals to the armed forces which is the first civilian court within our military juice system to which they can appeal. after that they have the right of the appeal to the supreme court. i think what we are saying is that if you want to -- to the extend that you can stay batheful to the ucmj, that one way to approach it would be to allow the court of military commissions review either military judges that sit on that court now, or a comnation of military and civilian judges, that would have fact cull powers. and after that you can go into the federal system or you could go to kaf and mirror the ucmj

system. either of those paths would lead you ultimately to the supreme court. now can kaf do league? yes, sir, they can. they are very skilled jurorrist. if the bill contains and continue to con tan and appeal, caf can do that. so think i wld pfer the current system because our military judges are used to be factual and legal sufficiency. if you choose to go the caf route, the caf judges are capable. >> you made recomndation with those regards of the classified evidence and also the standard of coerced statement. do you have any other information that you would make? >> no, sir, those are the two. and those really go to senator

mccain mentioned the -- we've got to get these commissions moving and the practical aspects. and that's really what my two recommendation go to. we're finding -- and ts is through discuions wh the chief prosecutor, that they are having a lot of difficulty in using military rule of evidence. to the recommendation to use a classified information process, i would call a cepa plus. the good parts which is to close a proceeding, a military commission when classify, close it to the public when classify evidence is being introdud. that we would take that in, add it to the see pa rule that is our judges can rely upon that my personal opinion is that probably a better approach to get these commissions moving. one of the prosecutors that the

judges are demanding that they do everythin with written submission. which is an ex parte hearing where u can go in before the judge, you can get issues resolves, and we can move on. that's why i recommend the that the committee tak a look at cepa plus as a subject perhaps for that provision that talked about mre505. i do agree, i think the committee has it right on the reliability that enomists in the bill. and i think fundamental there is a difference between the standard that grew up in a law enforcement environment, that that's different tha the law of war context we find ourselves in. and amany worried that a military judge that has a

voluntary -- imposed upon him is going toook at the statement taken by the rifle when a soldier goes in, breaks down the door, and takes a stement from a detainee, i'm wor that they are going to apply that. and i would argue that it's inherent coercive environment when you have a rifle pointed at you. and i'm concerned a judge is going to look at that and say that stateme doesn't come in. i would rather see this as part of totality of the circumstances leads to if the inherently reliable. and what i propose second-degree -- proposed is a prisoner of factors. >> thank you very much. >> you have language on your factors, you might have to share with us. not now but ler. >> i will.

>> but you are in agreent with the gislation passed through the committee. >> yes, senator i am. >> thank you. >> senator udall. >> good morning, general. thank you,. mr. chairman, thank you. senator mccain and graham have worked hard. i have to note can you imagine a lot of other countries in the -- here we have the best of the american tradition deciding something as important as this. i was a member of the armed forces committee in the house for four years. i voted for legislation identical to the bill being proposed by this committee in the year 2006. i thought it struck a balance between military necessity and basic due process. that bill didn't past. and i voted against the military commissions act that we're

looking at tod. this ishe bill psed. the prosecution of terrorists with new untested legal armed that didn't require the requirements of the hamden provision, i thought it might endanger our service members. but it might undermine the basic standards of u.s. law. it departed from a body by our troops. given that, i'm glad here here today to visit this important legislation. i might turn to you, i was a member of the task almost three years ago when you testified about the importance of reciprocity. and i want to quote you, a you said that you would be concerned about other nationals looking in on the united stes and making a determination that if it's good enough for the united states, it's good enough for us, and perhaps doing damage and harm to some of our servicewomen

and men if they were to be held. how do you think the provisions measure up in terms of reciprocity? are these provisions good enough for the united states in your view? >> yes, sir, senator. they are. and i would get back to what senator levin said. the two major points that we have to be concerned about is reciprocity, and are we creating a just and fair system. think we are prepared to take an unlawful or unprivileged enemy combatant to one of these missions. if we believe that we have created a fair and just process with this bill, we should not be shy about taking anyone before these commissions, for i think senator, just that reason. and i would be very comfortable with u.s. services members subjecd to these rules. >> thank you for that answer.

mr. kris and mr. johnson, if i might turn to you in the question of the provisions. kris you said that the d.o.j. supports such a supervision. could you talk a little bit more along those lines? mr. johnson, i'd like to hear the d.o.d.'s views. >> yes, thank you. with respect to the i'm not representing the department of justice as much as the administration as a whole, our basic idea that underlying the subset, and we haven't specified the years, as long as there's a continuity that cases can go past the sunset, it's a good idea to take a look at the passage and see whether there have been any developments that council some changes or a fresh look.

that's really what is all boils down to. >> senator, i would agree with what mr. kris said provide it doesn't jeopardize ongoing prosecution. we think it is a good idea. we don't have a magic number of years. but given the reality of changes circumstances, on an internationalevel, and lessons that could be learned from military commissions prosecutions in the immediate years forward, we think it's a good idea. >> thank you for your insights. let me turn to follow-up question on the comments of the chairman made in his opening statement regarding the resources for the defense side of the efforts we are discussioning today. the chief defense council issued a memo that i thought raised some troubling issues. and i'd be given views of each of the panelist on the current military provisions and wheth

it address the needs of the defense. maybe we start with macdonald and move become across. >> sir, i agree with the concerns expressed in the senior defense cncils memorandum. these have been a long-standing concerns about resources, about access to experts, and i think it's sometng that needs to be addressed. i don't see anything to your point about is it in the current bill? i don't see anything in terms of socing that would get at that particular issue. but i do think that the defense council needs more resources. :

>> mr. kris, my time has expired so if you could be sustained ever like to hear your answer. >> primera this is a defense

department issues legislate to associate myself with the remarks of my colleagues. one thing to point out is that the committee's bill does follow our rule change in allowing a choi of counsel, i think it doesn't define the pool from which that choice would be mad and that would be somhing i think we would like to work with you on. >> thanks again, gentlemen, for your enlightening testimony. >> senor reed? >> thank you, mr. chairman. thank you, gentlemen. i just want to clarify some issues that have been previously touched upon. my understand that in a case in 2008 that the supreme court recognized the right of habeas corpus, that's a constitutional right, is that right? >> yes. >> so there is at least one constitutional right that has been recognized in terms of any aliens, and that is this habeas corpus. >> correct. >> and thats the only one? >> that is so far the only one the supreme court says applies

there. >> in the issue that we have talked about with respect to sort of geography of these trials is that, and i guess this point du jour opinion, moving some of his military commission to the united states might engender other appeals that could triggerequest for additional constitutional right? >> i think regardless of where these cases are held there will be appeals. depending on which of the process is adopted and there are a number of them under consideration, including in the bill. what results from those appeals i think is, mr. johnson and i have both said, is very difficult to predict, because there have been quite a lot of development in the law over the last 50 years since commissions were last used. obviously there is some standard of due process that applies to a military commission. exactly what that standard is, as i say, sometimes difficult to discern.

in light of developments le theecision, i think it can also increasingly difficult to be sure to guide you think geography may play a role in the right or the pcedures that are required. but again, it's hard to know for sure. >> let me also raise another issue, that has admiral macdonald pointed out, they recognize the indefinite detention of combatants until the end of hostilities. my impression is that we reser the issue and did not desire it. is that accurate speaker psychic you might be referring to hawn d. which is a decision in which the cour recognized the authority to detain under the law of war. and the court left open, i think, the question whether that authority would at some point run out. and so i think that is an accurate statement.

>> and i would presume that the category of individuals, that fifth category, those that have to be held because of their potential, will have the right to havey is to periodically at least raise the issue, whether they stillhould be detained, mrjohnson? >> will, in fact, almost all if not all of the guantánamo detainees are suing the government in haiti is, and the president in his may 21 remarks stated with respect to that fifth category that there should be some form of periodic review, even subsequent to havey is proceeding and that is something that we're working on now. and friendly one of the other reasons to move quickly but thoughtfully in the process under for the commission, is that this is the way in which to ensure due process prior to a court deciding on a habeus.

is that fair? >> i think that is there. >> it would do us well to move awfully on this legislation. >> yes, sir. >> admiral mcconnell, you commented about the voluntariness standard and you're concerned, you have concerns about i would -- it might tend to, i was a confused, it might collocate the decision-making of military judges. but ultimately, any practical position for despicably about what the supreme court will hold because that's why, one reason why we are here and you're with us again. >> yes, sir. i would agree with everything that's been stated this morning about how unsettled the law is in this particular area. what i would propose is using voluntariness, not as the only standard, but assuming at as

one of a number ofactors, others being to the extent to which a statement is corroborated, looking at the reliability of the statement within the four corners of the document itself. my opinion is that if the supreme court or federal court would recognize that there are fundamental differences between a standard that grew up in a law enforcement paradigm versus one that we are trying to understand in a law of war. paradigm. and that the reason i talk about this balancing test, this totalitarian of the circumstacircumstances and the number of factors is, i think that will provide the judge with kind of a guidepost. so for example, if you are evaluating a statement that was taking at the point of capture, you might way voluntariness less because it is a more coercive environment than you would corroboration and of the four corners of the document. as you become more attenuated

from the battlefield. so for example, six-month, oe year after the detainee is removed from the battlefield and is in a facility like guantánamo, then perhaps voluntariness in the judge's mind would be more important. but we would leave that to the military judge to determine on a case-by-case basis as he or she sees it. >> thank you very much. if i may, one final question, mr. johnson. is it your intention or have you decided to either try, give everyone w is in quan thanh amo some type of due process, either military commission or a trial, or are thereome people that simply will not get any procedure at all? they will be deemed to be an enemy combatant and will be detained. >> well, putting asidenyone

who has been released or may be transferred to another country in the future, i think it is accurate to say that the remaining populationill eith be detained, because we have en upheld in the havey is litigation and they are subject to that review. i review to a moment ago. or those that violate the laws of war that we feel we can and should prosecute will be prosecuted in a military commission, and those that can be prosecuted for violations of title 18 will be referred to the department of justice and article three courts. >> ninety, mr. johnson. senator hagan. >> thank you, mr. chairman. and thank you gentlemen, as you know, over the course of many years before administration has released a number of detainees from guantánamo. and obviously we're hoping that many of the other countries will take some of these detainees

that are remaining. but we need to be mindful of the fact that the countries in the region such as yemen are currently incapable of mitigating the threat posed by the returned guantanamo bay detainees. whethe the country lacks the appropriate institutions or mechanisms of enforcement such as a counterterrorism law or the abily to prosecute the detainees. and additionally many countries in the region may note willing to accept them. i think we need to work with the country in the region that have a proven track record in rehabilitating the terrorists to accept detainees transferred from guantanamo bay and according to the office of the secretary of defense saudi arabia remains one of the most reliable counterterrorism partners in accepting detainees that have transferred from one thanh amo bay. the size of actually institutionalized a rehabilitation program that is developed the minister of

interior to deradicalize and rehabilitate the former detainees for reintegration into the society in saudi arabia. according to the office of the secretary of defense, efforts are underway to convince saudi arabia to accept some of the many yemeni detainees that have saudi tribal affiliations into the kingdom's rehabilitation program. my question for all of you is, how is the department of defense addressing the problem that many countries in the region are just simply not capable of mitigating the threat posed by the guantánamo bay detainees and they lack the appropriate institutions and mechanisms to prosecute them. and also, can you provide your opinion on working with the countries and regions such as saudi arabia to accept these yemenietainees that are transferred from guantanamo bay that share the same trib affiliations?

>> senator, i agree with just about everything you said. many people do not understand that it's not as simple as, oh, xyz country is willing to take the detainee back so we can send him back. there needs to be in place and adequate rehabilitation programs where the circumstances warrant, or the ability to monitor in that accepting nation so that the detainee doesn't simply read turned to the fight. and we minimize to the fullest extent possible any acts of recidivism for those who are transferred or released. the safety of the american people is the utmost concern. so we bieve strongly that rehabilitation programlike the one you referred tore something that we should

encourage, promote, and it's something we are very, very focused on. >> mr. kris? >> i agree with everything that mr. johnson said. it is absolutely essential tt when we transfer these people to foreign countries, that we do so under conditions that ensure safety. and a rehabilitation program that the saudis have is an excellent program, from what i understand. >> sator, i would agree with mr. johnson on ts, and in particular with our military members. we are returned about returning fighters to the battlefield. so this is a big issue for us. but i think the way mr. johnson characterized it is exactly right. >> thank you. also, i think that we need to be mindl that although the interrogation detainees produce obviously able informaon and sources of intelligence, we also know that they can compromise the ability to prosecute

detainees viously if the evidence obtained is through an interrogationethod that would include dish that would involve torture. mr. kris, can you just describe the process in which the department of justice is reviewing the evidence associated with each of the guantanamo bay detainees to determine if they can in fact be prosecuted, and how is the department of justice working with the department of defense in this regard? >> yes, i would be happy to do that, said her. and mr. johnson and i are working closely together on this. there is obviously the review by the task force that was set up by the executive order that makes judgments about whether cases are potentially prosecutable. at that point th need to be reviewed both by the justice department and the defense department, working together to try to figure out are these cases really appropriate to indict, either in and article iii court, or to bring either

before a military commission. and as mr. johnson and i have talked about, this i a fact intensive judgment that requires a careful assessment of all of the evidence, identity of the victims, location of the offense and a variety of other factors are coming, i wouldoint out i guess these kinds of form selection choices are not unfamiliar to federal prosecutors. they havto make these kinds of choices in other cases as well, whether it is between federal and state or u.s. and foreign or even you cmj and article iii court's. so that has to be a process whee the cases really carefully reviewed and worked up by a joint team, and then a judgment made about whether and when it out to be prosecuted. >> ninety. thank you, mr. chairman. >> thank you very much. we will have a two-minute second round with this panel. i wish it could ba lot longer. first, admiral macdonald, i

again ask you this question the first resolutely asking a. do you belve that our language and forms to the hand and standards? >> yes, sir. i do. >> and secondly, admiral, mr. johnson said that the preference here would be to have more article iii trials we will i think you're some testimony that all the trials should be article iii, thathere shouldn't be any military commissions. and i am wondering if you could tell us as kind of a military man, but jag officer in the navy, why military commissions at all? why not try everybody under article dishwater those circumstances which make i difficult that i think mr. kris and mr. johnson are working through, why would you want to

y anyone under military commissions, or need to try anybody with military commission to? >> well, senator, i think again it goes back to you know, the uniform code of military justice and federal law is designed for a different model. it's designed for law enforcement. we are in a wartime environme. >> give us a practical part of that environment, which would lead you to conclude we ought to haveilitary commissions try people, orhat we need to have a military commission. >> again, senator, it would go to that very coercive environment when theyer relying upon our soldiers to go into a dangerous environment, where in many instances they have to break down doors. and we're worried about their safety. they are worried about it. we don't want him to have to stop and think about getting miranda rights, or getting article 31 b. rights under did you cmj. we don't want them thinking in my personal opinion of whether

or not the statement that they are geing from someone in a house that they are just broken into, whether that statement is purely voluntary or not. and i think that that's recognized, and the supreme court recognized that in the hamdan case, that there are these unique circumstances that come up in a law of war environment that just cannot be handled under, you know, two different systems that were created r a completely differen reason. the other thing that i would say, sir, and this is your point in your opening about a fair and just process. i think we nd to be clear. as we go forward with these commissions, we need to feel at these commissions can try anyone. anyone who fits within the jurisdictional definition that you have put in the bill, the personal jurisdiction section,

we got to feel very comfoable taking anyone. now, i understand that the president has prefers article iii court, but in my opinion, when we leave here today, we ought to be looking at this bill and saying to ourselves it is fair and just to senator udall's question, we would feel very comfortable having our own service members. tried under this kind of a process. and i don't think we should kid ouelves. anybody should be able -- y inning and combatant should be tried under this process. >> just quickly. relative to your totality of the circumstances, point as to whether or not atatement obtained is coercive, in our bill, a statement that is obtained through cruel and human and degrading treatment is not admissible, terry. when you are suggesting is that instead of adding a quote of voluntary standard to that, that

to be something much more carefully defined so tha a judge can look at the totality of the circumstances and take into account the factors involving warfare and the use of force ishat accurate? >> yes, sir. must senator. we pushed into thousand six to eliminate the discrimination between statements taken before december 30, 2005, the day of the treaty act any different for after your bill eliminates that disinction, and so statement taken from under torture are eliminated. and the cid statements, they are eliminated. i'm talking about some level of coercion bel those two standards. >> torture is defined by the geneva convention. >> yes, sir. >> there is one more thing i have to do. that is this the question of location. our bill clearly is not going to distinguish as to what the

procedures are dependent on where the location of the military commission is. i mean, thers no way that our statutory language can make the distinction. i think that you were present at mr. johnson and i think mr. kris, some extent, try to describe what it might maka difference. i guess in terms of a judicial court or judge his opinion as to, depending on where the location is, i don't see that at all i must do. i don't see how the location of the military commission hearing can have an effect at all. it will not have an effect, nor can it in the way we write the procedures. finally, however, on the other side o the coin, if you are going to try people for article iii crimes, which is your preferce, there is no way, practically, those folks can be tried in wonton will. you cannot he a jury.

it takes months with hundreds of citizens dragged down to guantánamo to live while a jury is being embedded in an article iii terminal case. there are many reasons why we needo bring people if we're going to try them for crimes, under article three of which we want to, but you need to bring them to the united states as a practical matter. and as far as we're a military commission is filled, i don't see that there is a difference. you have been asked for the record to give us any thoughts on that. and of course that request, i know you will honor and give some thought to. but i just don't offhand see that it could makeny different as to the procedures as to where a military commission is held. that's a statement that it is noa question that i am way over my targetf you want to reacto that for the record, going. stack first, i agree with you that it's hard to imagine an article iii prosecution to bring

at one time a. second, and talking about location, we have been cautious just because the czar comment difficult issues and will get you something for the record. the third i just want to make clear, despite the difficulties, our st prediction is that voluntariness will be required, a matter of due process. is a voluntariness standar that is based on tality of the circumstances and it isery similar, i think, to what admiral macdonald was talking about is that you have to take account of the realities of war, but i do want to make clear that we have come to that conclusion civic that is the position the administration will welcome from both of you on tha but our bill as it stands does incorporate the geneva convention. >> thank you, mr. chairman. ihink we'll find some common ground here about the evidentiary standard as far as statement goes. i think we both view it the same, that admiral macdonald used by the situation very well

when you are in detention outside the battlefield, the analysis will be different. if you're in the middle of a firefight, the judges should be able to accommodate the circumstances. and i don't think there's really a whole lot of difference, mr. kris, between you and admiral macdonald. we will get there. but dislocation issue is very important because the politics of this, for lack of a better word, mr. johnson, is it your view that closing guantanamo bay would be an overall benefit to the war effort in starting over on detainee policy? >> yes, sir. you, senator, which is also the view of the administration, but it is my view that closing guantanamo bay enhances national security. >> i would just like to maybe being the odd guy out as republican, i believe that also said that because general betray us, and every other combat commander has said that being able to start over with the detainee policy would take it to off the table used by our enemies because wonton will pay quite frankly is the best run

military prison in history right now that we all agree with that? that the current state, admiral? >> yes, sir. i do. >> i have been there. the @rofessionalism of the guards at guantánamo is remarkab. i have visited civilian clients in a hubris and then i believe the professionalism of our personnel there is really remarkable. >> i too have visited gitmo and i was impressed. into the guard force, families who may be listening, whour loved one goes through every day at guantanamo bays a real sacrifice. that is a tough place to do duty. but having said that, it is what it is. and starting over with detainee policy i think it helped e country. mr. kris, you said one of the goals of a reform commission is to let the international community know thathere is a formal legitimacy to the commission that we haven't been able to otherwise, is that correct be? i think it is in import and a ey could be one of the main reasons that we are ing this work, the committees doing

this work is the legitimacy. >> i totally agree. but the last thought is i just can't believe, quite likely, getting the supreme court cases that if you close guantanamo bay, move the detainees with inside the united states and perform a military commission trial like we did in world war ii, that there would be a substantial difference. what i don't want have taken away from this hearing is that if we close guantanamo bay and the detainees within the united states that they're going to be conferred upon them a path or of legal righ they would not have otherwise. and can you all just address that? packet may be helpfuthat we say there is a number of i think relatively modest differences between the committee's bill and the administration's proposal. but as youaid they are not vast and we do approve of and support the bill. the changes that we are recommending, we think would be able to survive constitutional review, even if the commissions were held in the united states. >> such as the location alone is not going to change the dynamic.

the court would apply and a dramatic way. >> no. and we think that what we are proposing will pass muster comfortably in the united states. >> senator, we are not suggesting, i want to emphasize at, that the full range of constitutional rights would ply depending upon location. we have referred in this hring today to voluntariness and mr. kris is right, when you look at the suggestion from the administration on a totality of circumstances, voluntariness is really not that difficult from what admiral macdonald has described. >> senator, i think as you just pointed out this is really coming down to that particular right and the voluntariness test. i would align myself with mr. is that bringing the site is of the military commission in terms of additional constitutional rightshould not maer.

and i think we probably can reach some common ground between what i would consider to be a balancing test using voluntariness, and what the administration's position is right now. >> thank you, senator graham. >> thank you, mr. chairman. chairman asked admiral macdonald the questaon, and rhetorical question of why would you try any of these people in a military commission setting as our bill requires? and i got your answer, admiral macdonald, was compelling in very principled patient to a certain extent i suppose what i really want to ask a question from a different perspective of mr. johnson, mr. kris. which is why would one prefer, why would anyone prefer to try people apprehended for violations of the law of war in article iii fedal court?

as you said, i was disappointed with your answer and it kind of pulled me back a little bit from my feeling of appreciation toward the administration for accepting role for the military commissions handling of these people. i mean, the fact is that from the beginning of our country, from the revolutionary war, we have used military tribunals to try war criminals, or people we have apprended, captured for violations o the law of war. and again, i think the unique circumstances of this war on terrorism against the people who attacked us on 9/11 may have led us down, incding the supreme cour some roads that are not only to be ultimately unjust, but inconsistent with the long history we have had your. we talked before about how the military commissions are not only within the hampden decision but certain within the geneva convention which is the international standard for

fairness and justice and handling people, captured during the war. so why would you invite a ball that say thedministration prefers to bring these people before article iii federal courts instead of military commissions, which are really today's version of the tribunals that we have used throughout our history to deal and i just went with prisoners of war? >> senator, please don't misinterpret my remarks. i applaud this committee's effo and his committee's initiative to reform the military commissions act. i think th militar commissions should be a viable, ready alternative for national security reasons for dealing with those who violate the laws of war. and i'm glad we're having this discussion right now, and i thank the committee for undertaking is. and ase said, by and large we definitely support what you are doing it president has made that

clear. when you're dealing with teorists whose station i'm going to say this on behalf of the administration, when you deal with terrorists is one of the middle and is killing innocent civilians, and so it is the administration's view that when you direct violence on innocent civilians, let's say in the continental united states, that it may be appropriate that that person be brought to justice in a civilian, public forum in the connental united states. because the act of violence that was committed against civilians was the violation of tle 18, as well as the l of war. do we believe strgly that both alternatives should exist. >> well, i hear you. i respectfully disagree, insofar as the administration has dated today a preference for trying

people in article three courts. because i think based on what you have just said, we are essentially -- the affect of it is, to give these w criminals, people we believe our war criminals, that's why we captured them, the greater legal protections of the federal courts because they have chosen to do something that has pretty much not been done before in our history, which is to attack americans, to kil people here in america as they did in 9/11, civilians, innocent, it doesn't tter. and to do it outside of uniform. so i think it puts usn a very odd position that we a giving these terrorists greater protection in our federal courts than we've given war criminals in anyther times throughout our history, even though in my opinion they are at least as brutal and inhumane, probably more view and inhumane, than any

war criminals we have apprehended over the course of the many wars we have been involved in. so i think we end up, yes, it may be also an act of murder to have killed people who were in the trade towers, the twin towers on 9/11. but it was an act of war. and the people who did that don't deserve the same constitutional protectns and our federal courts of people who, you know, maybe accusedf murder in new york cy, i am saying new york city because the attack was there. i'm over my time. this is a very portant discussion, which i look forward to continuing with respect with yu and others of the administration. thank you. >> sator martinez. >> think you, sir. to follow-up on that, i think is best enforced fascinating for us to discuss mohamed who didn't wear a uniform. and effect is like a great harm on civilians, not only here but in other parts of the world.

and considers himself be a part of a movement, of a political movement that we would then consider a person like that to a preference for trying him as a criminal under title 18 in article iii court as opposed to in a military tribunal. and according to an additional set of legal rights. and that begs another question to give we are doing article iii trils as the chairman was suggesting, we then alsare talking about closing guantanamo bay and in a year there is no way for 220 some odd people to be processed through some proceeding, whether article iii or or military commission in that timeframe. so where will they then he i guess they will be here. and what about those that are then acquitted? where did they go? what happens to them? would you mind touching on those issues? >> well, you are correct. you can't prosecute some

significant subset of 229 people before janua. and to those that we think are prosecutable and should be detained, we will continue to detain. whether it's at guantánamo or someplace else. the question of wt happens if there is an acquittal is an interesting question. we talk abo the often within the administration. i think that as a matter of legal authority, if you have the authority under the laws of war toetainomeone, and the hampden decision said that in 2004. that irrespective of what happened on the prosecution side. >> so therefore the prosecution becomes a mute point? >> no, i'm not saying that l. you raise the issue of what happens if there is an

acquittal, and in my judgment it is a matter of legal authority, you can get there take their mighty policy judgment one would make, but as a matter ofegal authority, if a review panel has determined this person is a security threat and, you know, they have lost in habeas and went on to our periodic review, we have made the assessment, the person is a surity thre and should not be released, if for some reason he is not convicted for a lengthy prison sentence, then as a matter of legal authority, i think it's our view that we would have the ability detain that person, whether in fact that actually happens i think would depend upon the circumstances and the facts of the particular case. but as a matter of legal authority i think we have more authority pursuant to the authority congress granted us with a ums as the supreme court interpted it to hold the pers provided they continue to be a security threat. and we had the authority in the first place. thank you to my time is a.

but i will just conclude with a comet that i truly believe that these are not criminals. these are people engaged in a very profound battle against this country as part of a nonstate actor for some of them but they nonetheless do not really belong treated as criminals but as people are involved in something much deeper and greater than that. >> thank you senator martinez. senator udall? >> thank you, mr. chairman. i will be brief. i want to thankhe three panelists for your excellent testimony. i also want too to the fact that civilian judicial system is interfacing and working with the military judicial syst. and i speak as a nonlawyer so i'm already getting into deep water here. but it seems to me that judicial system living, evolving, growing thing if you will. and we are working here to make sure that it is nurtured. another way to look at this as perhaps you have two different

nds of software systems that we're trying to integrate and understand together. so again, i want to thank the cilian and defense establishment for working together. anytime i he remaining, mr. chairman, i do tohe jag officer sunday said a comttee, senator graham, who i thought has been very, very incisive with his questions and comments day. >> well, i understand, we do have two legal systems go into there. haiti's right have been granted to guantanamo bay detainees. while i don't agree with that right under the bill that senator levin and i wrote, every detainee would wind up in federal court. the d.c. circuit court of appeal the supreme court ruled that habeas right apply to the detainees. we need to look as a nation about creating uniformity to these habeas rights that we as a nation want them to allow for lawsuits against ourwn troops? medical malpractice case was brought under the old habeas system.

i think, senator uda, we can streamline the habeas process that there is a role for an independent judiciary and i would just like to conclude with this. no one should be detained in america for an indefinite period of time that doesn't go to a civilian court or a military court without an independent judicial review. i do want people to believe that folks are jailed because somebody like dick cheney or you can fill in the bnk with a politician, said the. it doesn't bother me at all that all of our cases will go to civilian cases in the military, e cia has to prove to civilian court that these people are dangerous and they are part of any. once that has been done, then i think it's crazy just to arbitrarily sayou've got to let them go. if our intelligence community upon a periodic review, and you had, believe that they represent a danger to this country, i think it would be crazy to say you've got to let them go because you don't under the law of armed conflict. but you're doing, senator udall, we need a hybrid system that we need to go to judges involved in

this war because it's a war without end. as the president said st week. there will never be a definable end to this war. and enemy combatant determination can be de facto like since. i do want to put people in a dark hole for ever. i want them to have a way forward based on their own conduct. some of them wil be able to get out of jail because they have read the ability of himself and some of them may in fact die in jail. but i want it to be a process that is not arbitrary but it is not based on a politician saying so. but a collaborative process with an independent judiciarx legitimizing our actions. i think that's what this country has been lacking. and a battle we need to go forward. that is not being soft on terrorism. that is a point americanize to this war. >> thank you, senator reed. >> take it as a been a very thoughtful discussion. it has been a discussion about the value of trying everyone in the military tribunal, military aggression or trying people in civilian courts.

and i think just forhe record there is a value to trying some of these individuals in civilian courts because they are criminals, and because when we -- they try to claim the mantle of warrior. and that is their feeding into their appeal out in the great islamic world. but in fact, they are criminals. ey have committed premeditated murder, and in that situation i think they should, if we can mount the case effectively in court, we should not only do that, but they should be not only convicted but also sort of identified as criminals, not as soldiers, not as warriors, etc. there are other cases where captured on the battlefield or because of practical considerations of military tribunal will rk. and i jus wonder, at the motel, do you have a reactio to that? >> i guess my only point would be this.

is that i think we need at the end of the day to have full faith and confidence that what we are creatinin theilitary -- in this bill, is a fair and just process. i am sensitive to th there may be situations where going to an article recor going to federal court, maybe the right decision. and given those facts and circumstances that exist in a case, but i just want, i think it is absolutely vital that when we leave here at the end of the day, it's not because we believe that what we have created is a second class legal system. we need to look at this, that this can stand alone in the world. and wereling to be judged by what we are putting together today. and that's my only point is that you ought to feel very comfortable sending anybody to these commissions process with ese changes. because we have, we believe it is a fai and just system.

>>he ultimate test would be if american service men or woma was subject to these procedures, we would consider them to be appropriate. >> yes. >> thank you. >> thank you. i would just conclude by saying what our bill does not address, does not purport to decide or address. one, we do not decide whether a rson will be tried -- who is going to be tried will be tried by an article iii court or a milita commission. we have been told there will be some of each for bry's recent. we do not make that decision in this bill at all. don't purport to. secondly, we do not address the question of where the trial takes ple. that is not addressed in th bill. third, what we did do is address the procedures that would apply where there are military

commission trials. and it is pretty obvious to me as chairman those procedures will apply regardless of where the military commissions is he. there can be any different in the way we wri a bill on that, and disagree with the suggestion that somehow or another it will make a difference in terms of a court ruling. the supreme court or otherwise, as to whether or not a military commission proceedings held in the united stat or in guantanamo bay. ideas as a lawyer cannot imagine the supreme court or any other court saying this commission was held in one place, therefore one rule constitutional rule applies. if it were held in another place, a different constitutional rule applies here given what the court has decided in yemen and in hampden, i just can't imagine that there would be any different in that decision, whether trial court

supreme court as to where thi military comssion proceeding to place. finally, on the voluntariness issue, hopefully we can come up with some, like which on that. but in any event, we have language in the bill which incorporates the requirements of the geneva conventions. in terms of coercion, in terms of whether or not a statement can be used against a defendant. thank you all very much for your wonderful testimony here. your carefully, thought out testimony will be made part of the record. we will have some additional questions for the record and will now move to our second panel. [inaudible conrsations]

>> all right. if we can all a quietly. those of us, you will miss a great second to pick on our second panel we have three distinguished experts on military commissions from ouide of the government. here are the outside panel. first retired vice admiral john hutson, kathy dtinguish 27 year career as a navy lawyer by serving as the judge advocate general. you're a rear admiral. i've been corrected. [inaudible]

>> yr mic wasn't on the you may want everyone else to do. you may not want anybody to hear your response. rear admiral john hutn serve as a judge advocate general of the navy from 1997 to the year 2000. is currently dean and president of the franklin pierce law center. second, retiredajor general john altenburg completed a 28 year career as an army lawyer. serving as assistant judge advocate general of the army from 1997 to 2001. and is the first appointing auority for military commission from 2003 to 2006. finally, daniel marcus, serves aseneral counsel of the 9/11 commission after spending a number of years in the white

house. the white house counsel's office and the department ofustice, he now teaches nationa security law and constitutional law at the washington college of law at american university. gentlemen, we thank you. we didn't give you much notice. about his hearing. is a very important hearing and we greatly appreciate your attendance and the work that you put in. all your lives for this nation. >> think, mr. chairman. i very much appreciate this opportunity. the honor and privilege that it is is not lost on me. i will be brief. i have got a written statement, but let me summarize it basically in a sense. that i will applewhite are just very briefly, which is that we don't ask the department of justice to fight our wars and i think we should ask the department of defense to prosecute our terrorists.

i respectfully disagree with senator martinez. i think they are criminals. and they oht to be treated as such, and to somehow elevate them to the status of say, major andre, i think is inappropriate. i have to concert. one is that right now the u.s. military is if not the most highly respected institution i the united states, it surely is among the very top. and there are a couple reasons for this. one is that theilitary carefully restricts itself to itprimary mission, which is to fight anwin our wars, to provide the kind and the space necessary for the real solution, social, cultural, religious and otherwise, ttake place. and thel once that mission is limited to war fighting, the miliry does that very, very

well. just as the department of justicerosecutes criminals very, very well. so there is that. the other aspect for me is that the department of justice has course of experience prosecutors, decades of precedent and experience, lots of judges, and great credibility in justifiable credibility in this area at the department of defense said they doesn't have. the department of defense personnel policies rotatpeople every two or three or four years. they will never, ever get the experiencehat federal prosecutors have, or that federal judges have. so i think we're missing a opportunity to display the greatest judicial system on the face of the earth, tshout it from the rooftops.

rather than doing that we are sort of hiding it under a bushel in bringing out the uniform service persons. and i admire andoud of the b that they do, but it is sadly not the primary responsibility of the partnt of defense or the united states military armed forces to perform that function and i would rather see ithere it should be in a very capable hands of the department of justice. thank you, sir. >> thank you, admiral, very much. >> thank you chairman and members of the committee. military commissions are an appropriate long balloted constitutional mechanism for law of war violation of military commissionsave always adapted to both the operational needs of the particular conflict, and to the en existing state of criminal law. this proposedtatute tracks the current state of criminal law and its most important respects

and codifies up or incorporates advanced thinking in criminal law since the 1940s use of commissions by the united states. this is true especially in areas such as hearsay and self-incrimination. include the reliability ccern at the supreme court has emphasized in the last 50 years. our miliry in the 21s century fight in a more complex manner, meaning that congress must forthrightly acknowledge how this complexity impacts on military commissions. including evidence gathered by intellence personnel, not just conventional forces, operations in places and under circumstances that wou n serve our to be made public and confronting an enemy of uncommon ruthlessness and ability to reacanywhere at anytime making personal security of participant in the investigative and trial process and especially sensitive and appropriate consideration. i applaud the efforts of the committee in proposing this amendment to the military commissions act. i think that there are several

reasons why these people should be prosecuted in military commission among them the fact that we're prosecuting them for war crimes and not violations of title 18. they may have also committed violations of title 18, but we are prosecuting them for war crimes. it is a part of the commander-in-chief authority to prosecute war criminals during a war, and just after war pickett serves as a deterrent to othe. and the ucmj, sometimes we use the word ucmj and react like that's just court-martials and court-martials are different at the ucmj include four cargoes of the court-martial is a wonder most of it was because more often not the shorthand and say you cmj when we meet court-martials. but military commissions have been around for a couple hundred years. and the courts have inquired from well over a hundred years the provost courts are the least used but i think that is a important distinction that we

should all keep in mind. and i would ask the same question tha a couple of senators have asked in response to my colleagues comments and that is why when we apply domestic crimil law due process for alien unlawful belligerent who have abandoned all civility and respect for international law? i jump to just two things that i would like to comment on that i think need to be address. one is quite frankly there is quibble, and that is that i believe because the service court have the experience of the fact-finding role, the experts and expertise honed over years and years that are more appropriate place for the intermediate appeal would be the existing court of military commissions review and not the kaf. the catfight sure as an earlier speaker mentioned certain has the expertise to the fact-finding role. i think it is best place with a

military appellate judges because of their experiee in that regard. and i think it would be somewhat onerous to play that on the kaf. their experiences with criminal law fothe most part, military criminal law is very similar t domestic criminal law on and we're now into an area of law something that is dealing with these types of crimes. the other thing that i think needs to be addressed is the issue of the death penalty. it is somewhat ambiguous in the military commissions act, and i just kind of state what the scenario is. if a detainee wants to plead guilty to capital offense, he can do that. but the way the military commissions act is written, it says that he has to be found guilty by a jury. guty by commissions. there is a way to worsen that to make sure that it is very clear and that we don't spend hours and days litigating at the military commissions

proceedings. you know, whether he really can do that and exactly what that means. and i would be happy to submit that in addition to comments or in response to questions as to what proposed liquid would be. just make it very clear, because i know prosecutor and defense lawyers and judges are trying to grapple th that. because some people want to plead guilty to a capital offense. of course, they want to be a martyr for their cause, and that's another discussion. but i think that it should be possible for them to plead guilty to a capital offense and then descends by the court. thank you, sir. >> thank you very much. mr. marcus. >> thank you, mr. chairman. i appreciate the opportunity to testify today. i have submitted a statement for the record and i would just say a few words in summary. i do believe there is a role for article three courts in some cases involving some of the guantánamo detainees and some of the other individuals who have been treated as enemy combatants at one time or another since

9/11. and i believe our article three courts have shown themselves able to effectively try terrorists in federal court in the padilla case and some of the earlier cases. so i think, for example, someone like padilla or someone like al-marri who was arrested by law enforcement authorities in the united states far from the traditional battlefield is an appropriate candidate for article three criminal prosecution. i noticed that one of the guantánamo detainees was recently transfeed to the federal court system and will be tried in the southn district of new york in connection with crimes, connect with the bombing of the east african indices in 1998. i think he ialso an appropriate candidate for an article three courts because it is not clear that he is

appropriately treated by a military tribunal since his acts were committed at a time when we arguably were not at war with al qaeda in a strict military sense. i do believe that while the federal cot can try my terrorism cases, that there are a lot of terrorism cases involving guantánamo detainees that would be difficult, not imssible, but difficult to draw in a federal court and i think that an improved military commission system is an appropriate way of tryi these defendants. and i think this committee's bill takes a major steps toward perfecting the existing mitary commission system, which was

already improved significantly by the military commissions act. but it do believe there is some additional steps that could be taken, and i outline some of those in my testimo. >> thank you very much, mr. marcus. go into some of the details, why is it difficult to try some o the -- or most of the guantánamo people in article iii courts? >> no, i think there are two main reasons. and i think they were referred to in the testimony in the first panel. there are some federal court rules with respect to admiibility of statements, the maranda rules, for exale. the fruit of the poisonous tree doctrine, that would make it difficult to let met some statements by detainees, that should be admitted as reliable,

voluntary stement under all the circumstances. i think i would assiate myself -- with a very interesting dialogue between the justice department and defen departnt representatives and admiral macdonald about the issue of voluntary statement and all of the circumstances test. i would align myself with mr. johnson and mr. kris with the administration, that i think we need a totalitarian of the circumstances test, but has to be anchored to voluntariness. i do think the principle in our system that confessions should be admitted only if they are voluntary is very imrtant constitutional a picy prciple. and we ought to adhere to it. i think it may well be psible, as you and senator graham had suggested to work out